Staying Ahead on E-Discovery

Last year several opinions approving technology-assisted review (TAR) gave litigants the confidence to consider and try these technologies. First, U.S. Magistrate Judge Andrew J. Peck of the Southern District of New York endorsed TAR’s use in Da Silva Moore v. Publicis Groupe. This was followed by an opinion from the District of Louisiana, In re Actos (Pioglitazone) Products Liability Litigation and from two state courts: Global Aerospace v. Landow (Virginia) and EOHRB, Inc. v. HOA Holdings (Delaware).

While the specifics of TAR tools may differ, the workflow and process tend to be consistent. Senior lawyers familiar with the facts of the case, the claims and defenses, review a sample of data from a collection for responsiveness and privilege. The software “learns” from the lawyers’ hands-on decisions and extrapolates from them across the data set, repeatedly applying statistical sampling and quality control techniques to refine and improve its decisions. The software then assigns each document a responsiveness score. Documents with higher scores can be prioritized for senior review. Lower-scoring documents may be reviewed by more cost-effective personnel (e.g. discovery attorneys or contract reviewers) or set aside altogether.

With the focus on cutting costs and optimizing resources, the challenge confronting “Big Data” in e-discovery is daunting. Organizations will increasingly turn to managed and shared services models. These approaches allow clients to predict costs, create efficiencies and control skyrocketing budgets despite massive data growth, frequent litigation and heightened regulatory scrutiny.