On October 15, 2012, Judge Travis Laster made an unexpected ruling in the case of Estate of Robert. H. Brooks (EORHB) versus HOA Restaurant Group (HOA). The case involves a commercial indemnity dispute involving the sale of the restaurant chain Hooters. Judge Laster proactively decided that both parties in this matter would have to use predictive coding — also known as technology-assisted review (TAR) — to manage any e-discovery. Judge Laster also required that both parties use the same e-discovery vendor. This decision by Judge Laster shows a significant disconnect from previous court cases (see Kleen Products, LLC et. Al. v. Packaging Corporation of America, et. Al ) in which the judges often consider responding parties to be in the best position to evaluate the procedures and methods by which to produce their electronically stored information. Whether or not this decision will set some sort of precedent remains to be seen, but there are several important considerations when dealing with predictive coding.
TAR is a combination of machine-learning technology and a work flow process that utilizes tools such as keyword searches and filtering to automate the e-discovery process and locate responsive documents. While the use of TAR is far from commonplace for all cases, it can be very useful in many instances because it:
- Can make the document review process faster, more consistent, and cheaper
- Prioritizes relevant documents for attorneys to review
- Reduces the volume of documents that will require manual oversight by attorneys or paralegals
As most attorneys know, increasing speed and decreasing costs don’t always mean greater efficiency. There are some risks associated with relying too heavily on technology-assisted review. With TAR, there is always the possibility that there will be an over production of non-responsive documents or an under-production of responsive documents which can lead to increased need for manual reviewers. Additionally, TAR can increase the risk of privileged or sensitive information being revealed. Because technology-assisted review is a relatively new tool there is some confusion amongst parties trying to understand the best software to use and the optimal settings to have in place to perform the most appropriate searches. On the other hand, many experts argue that TAR is actually safer and more accurate than human-only reviewing.
In the case EORHB v. HOA Judge Laster likely enforced an over-arching technology-assisted review requirement due to the nature of the case and the high dollar amount at stake. Several of the plaintiff and defendants arguments did not quite match up and by forcing both parties to take the same measures to produce responsive documents is likely to help the court paint a clearer picture of the circumstances surrounding the indemnity agreement correspondence between the parties.
There are several steps attorneys can take to ensure TAR is as efficient and reliable as possible. Because TAR takes into account several factors in its search for responsive documents it is important for attorneys to understand how the technology works and be able to supplement technology-assisted review with human oversight — hence the inclusion of the word “assisted” in the acronym. Additionally, it is important for attorneys be active participants in the process and to have open communication with their e-discovery providers to best express their needs, specifications, and desired results. Human judgment must still come into play in the review of any documents indicated to be responsive and particular attention should be paid to any documents that could be sensitive or confidential.
While technology-assisted review can be a helpful tool for attorneys it should not be considered to be the end all be all to locate responsive documents. The most important thing for lawyers to understand is how the technology works, how to best apply it to their case, and how to mitigate any potential risks associated with the process. If judges continue to make e-discovery rulings similar to Judge Laster’s, it would be wise for attorneys to familiarize themselves with the TAR process sooner rather than later.