eDiscovery Daily Blog
Why Is TAR Like a Bag of M&M’s?, Part Three: eDiscovery Best Practices
Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems. He has also been a great addition to our webinar program, participating with me on several recent webinars. Tom has also written several terrific informational overview series for CloudNine, including eDiscovery and the GDPR: Ready or Not, Here it Comes (which we covered as a webcast), Understanding eDiscovery in Criminal Cases (which we also covered as a webcast) and ALSP – Not Just Your Daddy’s LPO. Now, Tom has written another terrific overview regarding Technology Assisted Review titled Why Is TAR Like a Bag of M&M’s? that we’re happy to share on the eDiscovery Daily blog. Enjoy! – Doug
Uses for TAR and When to Use or Not Use It
Before you think about using more advanced technology, start with the basic tools early on: dedupe, de-nist, cull by dates and sample by custodians. Perhaps even keyword searches if your case expert fully understands case issues and is consistent in his or her application of that understanding.
When you have all (or at least most) of your data at the outset, some examples are:
- Review-for-production with very large data sets
- First pass review for Responsive/Not Responsive
- First pass review for Privileged/Not Privileged
- Deposition preparation
- Working with an expert witness
Then when you are ready to move on to more advanced analytics, get an expert to assist you who has legal experience and can explain the procedure to you, your opponent and the Court in simple English.
Advanced tools may also be helpful when all of the data is not yet collected, but you need to:
- Identify and organize relevant data in large datasets
- When the objective is more than just identifying relevance or responsiveness
- If you need to locate a range of issues
- If you have a very short deadline for a motion or hearing
There are several operational cautions to keep in mind however.
- TAR isn’t new: it’s actually the product of incremental improvements over the last 15 years
- TAR isn’t one tool: just as there is no one definition of the tools, there is likewise no single approach to how they’re employed
- TAR tools do not “understand” or “read” documents. They work off of numbers, not words
And when do you NOT want to use TAR? Here is a good example.
This is a slide that Craig Ball uses in his presentation on TAR and eDiscovery:
Image Copyright © Craig D. Ball, P.C.
The point is clear. With large data sets that require little or no human assessment, TAR … and here we are specifically talking about predictive coding …. is your best choice. But for the close calls, you need a human expert.
How does this work with actual data? The graphic below from the Open Source Connections blog shows a search result using a TAR tool in a price fixing case involving wholesale grocery sales. The query was to find and cluster all red fruits.
Image Copyright © Open Source Connections blog
What do see from this graphic? The immediate point is that the bell pepper is red, but it is a vegetable not a fruit. What I pointed out to the client however was there were no grapes in the results. A multi modal approach with human intervention could have avoided both these errors.
We’ll publish Part 4 – Justification for Using TAR and Conclusions – on Thursday.
So, what do you think? How would you define TAR? As always, please share any comments you might have or if you’d like to know more about a particular topic.
Image Copyright © Mars, Incorporated and its Affiliates.
Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.
CloudNine empowers legal, information technology, and business professionals with eDiscovery automation software and professional services that simplify litigation, investigations, and audits for law firms and corporations.