In the first two articles in this series we analyzed when to consider using technology assisted review of documents in civil litigation and how to work with opposing counsel to achieve positive strategic results. In this final installment, we explain the best ways to realize cost savings for your client through technology assisted review.
After choosing the right method of technology assisted review (TAR) and working with opposing counsel to ensure that your use of TAR is approved by the court, you must still attempt to achieve cost effectiveness in its use. While many practitioners assume that using TAR instead of attorneys will mean reduced cost, this assumption does not always prove true.
During the TAR process, increased costs generally occur at three levels – privilege review, validation and unnecessary motions practice. Even the best-managed TAR can fall victim to expensive complications at any stage, but planning ahead can help you avoid a surprise surge in bills in these areas.
Managing a privilege review of documents identified by computer software raises both cost and ethical issues. Once you and your litigation adversary have agreed on a responsiveness threshold, you may choose manually to conduct the privilege review of those documents or work such a review into the TAR process. The complexity of the privilege review will impact this decision, as cases involving numerous privilege issues across the production that cannot easily be distilled (i.e., by custodian attorneys, keywords, proper time periods) may not allow for effective identification of those documents through software alone. At that point, a manual review may be necessary despite the potential for increased costs.
Alternatively, even in complex situations you could negotiate with opposing counsel a comprehensive protective order governing the confidentiality of the documents produced through TAR, focusing on an airtight clawback provision. This would allow you to use the TAR process to identify and withhold potentially privileged documents while producing the balance of responsive material without additional manual review. If privileged materials are produced, you can immediately claw them back and, if additional batches of documents need to be reviewed and produced, you can alter and improve the TAR process.
Meanwhile, validation of TAR results can become an endless rabbit hole. The best way to avoid this is to establish a professional working relationship with opposing counsel. As noted in the second article in this series, you should avoid setting arbitrary responsiveness cut-offs and production criteria and instead share one or two sampling sets to demonstrate accuracy. A reasonably accurate initial seed set, shared with opposing counsel, will often help the collaborative process.
As to motions practice, recent precedent and The Sedona Conference® Principles both suggest that acting in good faith will allow you to position yourself well before a court. In addition, documenting the TAR process and, if challenged by your adversary, revealing the method and goal of that process to the court in one fell swoop should allow you to avoid litigating the issue through expensive, piecemeal discovery motions.
In its three installments, this short series has explained the nature of TAR, discussed when to consider using it, set out keys to its strategic use in litigation, emphasized the importance of working with an informed opposing counsel, and noted ways in which you can avoid unpredictable costs. By understanding the nature of this emerging technology, lawyers have an opportunity to provide more efficient and more effective counsel to clients in large-scale civil litigation.