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ACEDS 2016 eDiscovery Conference - Defending and Defeating TAR

Yesterday I attended a discussion on "Defending and Defeating TAR" in New York at the 2016 ACEDS eDiscovery Conference. The conversation was moderated by retired Judge Ronald Hedges (formerly a magistrate judge with District of New Jersey) and included Gina Sansome, an eDiscovery counsel at the firm, Axinn, Veltrop & Harkrider LLP; Adam Strayer a specialist in Technology Assisted Review at BDO; and Bill Speros a consultant on evidence management. My notes posted here are somewhat discursive because that was the nature of the wide ranging discussion. I have tried to provide detail on some references made by the participants that many (including myself at first) may be unfamiliar with.

Judge Hedges began the conversation by noting that the FRCP and the FRE don't address TAR, and that parties are the driving forces in how TAR is used. But he noted the importance of Model Rule of Professional Conduct 5.3 with respect to TAR.

The rule provides that when supervising nonlawyers, attorneys must make "reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer" . The onus is on lawyers to ensure that Technology Assisted Review is defensible. Judge Hedges admonished that the audience that if attorneys are wise they will work out agreements with respect to TAR among themselves and not involve the judge. He referred to the decision in Progressive Cas. Ins. Co. v. Delaney, No. 2:11-cv-00678-LRH-PAL (D. Nev. July 18, 2014) where great expense did not relieve a party from running keyword searches agreed to in an ESI protocol, where it sought to use predictive coding instead; Chief Justice John Roberts' year end report on the federal judiciary emphasizing the need for cooperation among parties in agreeing to creative solutions to dealing with increasing amounts of ESI and reducing the amount of civil litigation; and the cooperation requirements of FRCP 26(f), 26(c); and 37(a). There is an overall trend to get parties to agree on ways to deal with the review of ESI, and stick with their agreements.

Ms Sansome emphasized the need to understand how TAR works to achieve certain results - lawyers must understand the terminology for TAR (see the tip of the Night for June 4, 2015) and investigate by asking questions such as inquiring into whether or not seed set size is adequate. Attorneys need an understanding of a data set so they can see where new workflows are needed.

The nature of particular cases may determine if TAR is an appropriate approach for Review. They should assess their clients' tolerance for transparency, since the exchange of seeds sets has become standard practice. She mentioned the decision in In re Takata Airbag Prods. Liab. Litig., MDL No. 2599 (S.D. Fla. March 1, 2016) which held that the amended version of FRCP 26(b) allow parties to withhold or redact nonresponsive information.

Speros said that the disclosure of seed sets could often give a false set of comfort to the opposing party. He noted that clients often have a problem distinguishing upstream from downstream costs - TAR is usually charged for based on the number of GBs that are reviewed - the client incurs upstream costs in the processing, and saves on the downstream (in the production phase). He noted that there are regulations which encourage the use of TAR on clean data sets, rather than those from which subsets have been culled through the use of search terms.

Judge Hedges asked the panel if they thought that an expert on TAR would qualify as a Daubert witness. Strayer from BDO felt that this would be true with respect to the statistics of TAR but not to the workflow. Speros observed that Judge Peck n Da Silva Moore v. Publicis Groupe, 868 F. Supp. 2d 137 (S.D.N.Y. 2012) dismissed the idea of a Daubert TAR expert, but Judge Waxse of the U.S. District Court for the District of Kansas endorsed the idea in a law review article. Judge Hedges said he thought Judge Peck was wrong, and Judge Waxse was right.

Extending the conversation further, Strayer noted that the subject matter experts used for TAR are not necessarily those that know the issues in a case very well, or the documentation from the case very well. He considered the importance of the example documents presented to reviewers - should they be given sample documents that are only relevant to a particular issue, or sample documents that are only partially relevant?

Judge Hedges then discussed the split in the Circuit Courts on whether or not costs can be awarded for copying fees. 28 U.S.C. 1920 contains a cost shifting provision that allows for copying and 'exemplification' fees to be awarded to a winning party. Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158 (3d Cir. 2012) reduced a lower court award under 28 U.S.C. 1920 of ESI vendor costs limiting the definition of 'making copies' to the conversion of native files to TIFF images; the scanning of hard copies; and the digitization of VHS tapes. However courts in Northern District of California have not followed Race Tires and have construed 28 U.S.C. 1920 more broadly to include various electronic discovery fees. Judge Hedges thought that it would be unlikely the the Supreme Court would resolve the differences among the federal courts.

Speros noted that the nature of TAR is that it provides similarity rankings for documents - not relevancy rankings. He cautioned against measuring the results of TAR through recall and random sampling, and noted that the distinction between responsive and non-responsive documents doesn't recognize the qualitative differences between aggregates. Random samples can pull in the wrong units of interests.

The below slide from Speros is particularly instructive on how there can be different kinds of responsive and non-responsive documents.

A member of the audience asked whether or not it would be appropriate to put a TAR protocol in a discovery request. Judge Hedges and Ms. Sansome thought this was an interesting idea and didn't see a reason why it could not be done.

Judge Hedges closed the conversation by asking the group about how the Rules of Professional Conduct 5.1 and 5.3 require lawyers to supervise the review of multiple TBs of data. The panel responded that it was necessary to take a hands on approach to the documents and periodically sample them. FRCP 26(g) and FRCP 11 necessitate a good faith attempt at certifying the reliability of the Review process.

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