Editor: Is it a given that some form of technology will be required to meet today’s discovery demands?
Lavinder: Absolutely. Electronically stored information is playing a larger and more critical role in discovery, so technology is part of the landscape regardless of procedural decisions made by a judge in any given matter. Some tools are designed for broad-based, everyday use, while others handle specific types of cases.
Today’s document volumes are large and, for some matters, extraordinarily large. This trend drives the need for technology solutions that can eliminate non-relevant documents from the discovery workflow before the review stage.
Editor: Please summarize recent judicial treatment of technology-assisted review (TAR).
Lavinder: There is not much debate on the merits of TAR, nor has any case rejected its use; in fact, some judges have decided that TAR is so superior that all parties should use it. Most cases have demonstrated that legal teams are entitled to select their discovery technology – rather than be forced to adopt an adversary’s choice – so long as they use a reasonable method.
Interestingly, because of today’s discovery volumes, legal teams – and to some extent, the judges themselves – are called upon to have the required skills to assess and select appropriate discovery tools.
Editor: Why should legal teams specifically adopt a TAR solution? Can you tell us a success story?
Lavinder: Mainly, to reduce cost and increase efficiency, two key goals for e-discovery companies, law firms and corporations. The process of reviewing non-relevant documents is very wasteful and often incurs a large percentage of overall discovery costs. TAR solutions specifically address this problem and satisfy the needs of legal teams as well as the broader cost-control and efficiency goals of shareholders and corporate leadership.
Further, TAR solutions are helpful during the planning phases of litigation – with early case assessments involving the identification of risk, or perhaps with sorting through a mountain of data to determine the defensibility of a legal position as aligned with strategic objectives.
DTI recently worked on a discovery project in a high-risk case for one of our energy industry clients. While cost control was a consideration, the primary project goals were speed and accuracy in locating documents that could prove the client’s case. In just two weeks, and from a data set of over one million documents, we identified twelve thousand documents that were most relevant to the legal arguments being presented at a key hearing. And we double-checked our work through statistical model and validation testing to ensure confidence in the results, which would have been difficult, costly and time-consuming to accomplish with other methods. So, having the right technology, and the expertise to use it, proved highly beneficial to this client.
Editor: Are legal teams prepared to adopt TAR solutions?
Lavinder: Because TAR solutions can be fairly disruptive to current workflows, adoption is spread across a full spectrum. Early adopters simply changed their workflows and now use TAR regularly. Moderate adopters engaged a few staff members with expertise and use TAR only for big cases. Still others will avoid change for as long as possible. The good news for anyone who feels hesitant is that the disruption can be controlled by engaging outside experts, such as our team at DTI, to help with incorporating TAR into an existing discovery workflow.
Editor: Post-adoption, how can the use of TAR be optimized?
Lavinder: TAR systems must be trained by humans to recognize relevant documents. Engage a subject-matter expert – rather than a first-year associate or outside contract attorney – to make these judgments at the highest substantive levels applicable to the matter. This will produce a more targeted document population set for review, and the process itself can provide good insights.
There is a popular misconception that by automating the process, TAR strips power from legal teams and reduces visibility into a document population. In fact, TAR provides better insight and enables legal teams to maximize resources, minimize review time and generally make smarter decisions.
Editor: Tell us about some of the on-the-ground work that your project managers can do.
Lavinder: Being a large, nationwide company, DTI commands extensive resources to support clients, and we employ top experts in this field. In addition to offering subject-matter and technological expertise, our project managers deliver a process that leverages these assets and then incorporates the results into a focused document review workflow. Critically, our work requires tight communications and a thorough understanding of the client’s goal, and we clearly document our work so that we can replicate it and validate the results through sampling and statistical testing. Defensibility is always a key objective.
Let me wrap up by saying that there is no single workflow that fits every case. Some projects proceed in stages, for instance when documents are located overseas, and there is always the challenge of selecting the right tool for each job. In all cases, we take our primary guidance from clients and develop a plan that meets their needs and respects their constraints.