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Technology-Assisted Document Review: Is It Defensible?

03/19/2012

The following excerpt written by William W. Belt, Dennis R. Kiker & Daryl E. Shetterly appears in the "Richmond Journal of Law and Technology" (Volume XVIII, Issue 3).  A PDF copy of the entire article is available here.

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I.  Introduction

Technology has changed the way we communicate and, in so doing, has changed the discovery phase of litigation. Parties must sift through ever-growing data volumes to find relevant material, significantly increasing time and cost requirements. Technology has also changed the way attorneys meet discovery demands. New technologies like “machine learning” and “predictive coding”1 give lawyers important new tools to manage the growing volume of electronically stored information (“ESI”). At the same time, court decisions have sent “wake-up call[s]” warning attorneys that deploying technology without appropriate safeguards may be foolishly rushing in “where angels fear to tread.”

There was a time when clients sent their lawyers a file folder or box of paper containing the documents relevant to litigation. Thanks to the proliferation of email and other ESI,5 documents now more commonly arrive on a hard drive, and that hard drive likely contains gigabytes or terabytes of data which, if printed, would fill the law firm’s halls with boxes of paper.6 At first, the shift from reviewing and analyzing data in paper format to electronic format did little to change the document review process.7 Attorneys sat in front of computer screens and looked through email inboxes chronologically, similar to the way they previously would have read through a box of paper. e-Discovery technology has continually evolved to offer new tools and solutions. Now counsel has a myriad of tools available to assist in locating and reviewing relevant documents. With these technological advancements, the need has grown for technological expertise. Attorneys must understand the tools they deploy and how they fit in the discovery process. For most trial lawyers, the need to understand new technologies – both the technologies clients use to communicate and the technologies attorneys may use in discovery – can create daunting challenges.

In response to evolving technology, the people and processes used to solve electronic discovery problems have continually changed since the earliest days of electronic discovery. In the few short years since electronic discovery emerged as an industry, litigants and attorneys have felt the “future shock” of accelerating change.9 Technology-assisted review is yet another jolt to attorneys—a technology with the potential to change the methods we use to comply with our electronic discovery obligations.

Attorneys have been hesitant to adopt each succeeding generation of document review technology, including technology-assisted review. There are likely several reasons for this hesitancy. One reason is the cautionary messages sent by court rulings like O’Keefe and William Gross. Those two decisions relate to keyword searching, which has for some time been considered safe territory. Moreover, technology-assisted review requires legal, technological and business process sophistication to effectively incorporate the technology into a large-scale discovery project. In other words, attorneys must understand how to integrate technology-assisted review with the human component of document review. Though the same is true for other methods for facilitating document review, such as keyword searching, the complexity of the technology and importance of the process are new territory for most lawyers.

Most importantly, uncertainty remains as to whether the use of technology-assisted review tools is legally defensible. Though intellectual debate challenges the efficacy of keyword searching, it is generally-accepted and widely used. Technology-assisted review is not as of yet. Judge Peck argues that counsel may be waiting for an opinion stating that technology-assisted review is, or is not, a reasonable means of identifying relevant information.17 Anticipating that day, and in the interest of furthering the academic discussion around technology-assisted review, included herein is a legal brief that supports the use of technology-assisted review in a hypothetical case.

In this hypothetical, the producing defendant faces a motion to compel after using technology-assisted review to exclude from review a subset of documents that technology has “predictively coded” as not likely to contain relevant information. During the meet and confer process, plaintiff objected to using the technology and insisted that the producing party review all documents, including those predictively coded as not likely to be relevant. The defendant used the technology without obtaining plaintiff’s consent, and plaintiff later obtained relevant documents from a third party that were excluded from production by the technology. Plaintiff filed a motion to compel defendant to review all of the documents that had been excluded through technology-assisted review, and defendant filed this brief in response. The brief in this hypothetical case is offered to provide a starting point from which to discuss the issues in the context of a court motion. The brief is written from the perspective of the technology proponent; however, in an actual case, corresponding briefs opposing the technology would precede and follow the response brief. There is not space here to include the opponent’s arguments. In addition, the provided hypothetical brief does not address in detail the complex safeguards the courts require when counsel deploys technology in the discovery process. The sampling process, for example, may involve a statistical analysis better suited to a separate study. The arguments are based on federal law, though they should prove applicable in many state courts as well.

Read the entire article.

Source: Richmond Journal of Law & Technology