Technology assisted momentum is building: Ten reasons why TAR is likely to become the new normal

1 Introduction

There have been many cases in the US1 , and more recently in Ireland2 and New Zealand3 endorsing the use of 'technology assisted review' in discovery. Australian lawyers and discovery professionals have long anticipated a definitive case in Australia. The first English case on this topic - Pyrrho Investments Ltd v MWB Property Ltd4 - brings us one step closer to the formal acceptance of TAR in Australian jurisdictions. It helpfully sets out ten factors in favour of TAR, which all seem to equally apply in Australia.

2 What is Technology Assisted Review ('TAR')?

The following extract from the Pyrrho judgment describes TAR as:

"...the review of the documents concerned being undertaken by proprietary computer software rather than human beings. The software analyses documents and scores them for relevance to the issues in the case ... a representative sample of the 'included' documents is used to 'train' the software." This extract focuses on the use of technology in the process. However, human involvement - in the reviewing of documents to train the software - is vital to the success of TAR.

While the judge in Pyrrho uses the terms 'TAR' and 'predictive coding' interchangeably, TAR actually covers a number of different technologies and processes to improve the review and disclosure process; predictive coding is only one. Other examples include concept clustering, email threading and document categorisation analytics.

At KordaMentha we use one or more aspects of TAR in almost all of our review and disclosure engagements - from investigations through to electronic discovery - even if discovery is also run by more traditional review processes. Increasingly, the process includes elements of predictive coding.

3 Ten factors

The ten factors in favour of approving the use of predictive coding, usefully set out in Pyrrho, provide a good summary of the key issues. These factors will likely prove useful in assessing whether or not to approve TAR in Commonwealth law jurisdictions which have no specific case law on this issue (as was the case in England prior to Pyrrho):

1

Experience from other jurisdictions - predictive coding "can be useful in appropriate cases"

Whilst potentially very powerful and useful, TAR is not a panacea for all discovery issues. However, it can - for appropriate cases - provide significant time and cost savings, as well as allowing for improved consistency.

In our experience one of the main drivers is not the number of documents, but how intimately the client understands its electronic data. For example, what information is stored where? Where a client is not familiar with its data we have found TAR to be beneficial with as few as 20,000 documents.

2

No evidence that TAR is less accurate - "indeed some evidence to the contrary"

There are a number of peer review studies suggesting inherent deficiencies in the manual review process. (See KordaMentha article5 )

One of the key benefits of TAR is...