Over the past year or so, most attendees have become more familiar with the concepts of "precision" and "recall." That being said, are we ready to be thrown into "rules-based" and "machine-learning algorithms," TAR training set workflows, and confidence levels/intervals?
The third TAR session was a very well done role play of litigants attempting to navigate this thicket of issues. As we are very much at the "trust but verify" stage of TAR, attorneys are quite concerned that they will be giving up the ability to obtain what they seek in discovery. Plaintiffs want to know how the defendant decided on the "richness" of the responsive document set, and why particular documents were selected in the seed set and others were excluded. Of course, there was disagreement as to all of these points. The responses to many of these questions were cloaked in potential attorney work product and confidentially issues. Defendants generally do not want to disclose how and why specific documents were selected for inclusion in an initial seed set, protecting how case strategies and other confidential issues were developed.
It's likely that many conference attendees have not used some variation of TAR previously, and were quite surprised to learn that there is no simple methodology. Substantial human expertise is required, different TAR applications may be appropriate for different types of cases. For example, if you are searching for a few "smoking gun" documents in a large investigatory matter, a statistical sampling of the collection may never find those relevant documents. On the other hand, if a basic culling of a large data set to remove non-responsive information is required, a predictive coding protocol may be an acceptable modality.
We have yet to see the consequences of not selecting the proper tool for the data set in a case. One key point was clear at the end of the last session: All TAR methodologies require a serious degree of professional expertise and knowledge about the case and data set — before TAR can be applied, and require continuing involvement as the project continues. Not simple, yet.
Granted, this conference was attended by many of the leading judges and attorneys in the e-discovery universe. This group is clearly not a "cross section" of the bar, but in fact, a thin slice at the very top. Nonetheless, there was little consensus on most of these issues. The only thing certain is that there will be significant developments over the next few weeks, months, and years as the technology continues to evolve, the judiciary and practicing attorneys become more educated, and more case law addresses the benefits and limitations of TAR.
Attorney Howard Reissner is CEO of Planet Data, based in Elmsford, N.Y. Email: HReissner@PlanetDS.com.
Subscribe to Law Technology News
