In a recent court order, Judge Peck asserts what some of us have probably been assuming for some time: that it has become “black letter law” that courts will permit producing parties to use technology-assisted review (TAR) for document production (see Rio Tinto Plc v. Vale S.A., 2015 U.S. Dist. LEXIS 24996, 8 (S.D.N.Y. Mar. 2, 2015)).
It’s been three years since Da Silva Moore opened the door for technology to edge its way into the eDiscovery realm, and alas, the sky has not fallen. Judge Peck cites numerous decisions where various technologies have been used to determine the relevant documents for production with no court sanctions or other judicial intervention. Although some issues remain sticky—notably how transparent the parties need be about seed sets when the predictive coding form of TAR is used—TAR in and of itself is no longer the scary beast it once seemed and thus should be high on the list when it comes to choosing an eDiscovery methodology. To dispel the seed set controversy for predictive coding, Judge Peck notes that there are other means, aside from the production of seed sets, by which requesting parties might ensure that TAR has produced viable results.
It’s tempting to ask then: if the courts aren’t standing in the way of various TAR approaches, what’s the hold-up? Why isn’t TAR the default option for document review? One would think that by now, especially with the non-stop growth in data volume, TAR of one sort or another would be not only an accepted choice but a preferable one for any firm with matters requiring substantial eDiscovery.
We’ve investigated this question in a few of our earlier blog posts here and here, but it’s a question that bears continued consideration. A few years ago, when TAR hit the limelight, we identified five main barriers to adoption: 1) resistance to changing the incumbent process, 2) counsels’ technological competence 3) marketplace confusion, 4) judicial confusion, and 5) law firm revenue streams. It’s safe to say that over the past three years, there has been some forward momentum in most of these areas when it comes to accepting technology. But is it enough to finally move the needle once and for all? With so many ways in which to leverage advancing technologies, when will TAR be the de facto standard rather than the outlier?
Judge Peck is surely trying to help secure TAR’s place as primary in the eDiscovery repertoire. He even offers the following advice to allay concern about using TAR: “One point must be stressed – it is inappropriate to hold TAR to a higher standard than keywords or manual review. Doing so discourages parties from using TAR for fear of spending more in motion practice than the savings from using TAR for review.”
This is indeed helpful, but as we know from past studies, keywords (in the hands of attorneys instead of experts) and manual review don’t constitute a very high standard in terms of accuracy in the first place; TAR done well is always a better and usually more cost-effective approach.
So, it’s time to pick up the pace. Three years to opine about using technology for document review is long enough; as per Judge Peck, it’s black letter law now. Time for tech-wary counsel to make sure their own technological competence is keeping up with the times, because that’s pretty much the biggest barrier left.