The December 1, 2015 amendments to the Federal Rules of Civil Procedure and robust new technology have ushered in a new age for attorneys to benefit from artificial intelligence in the ediscovery practice. No longer should practicing attorneys be required to always explain and justify the use of technology-assisted review (TAR) methodologies to courts, but instead courts should measure practitioners’ discovery conduct by the time-tested dictates of proportionality and reasonableness.
This new age threatens some in the ediscovery space who have made their living consulting about the less-understood nuances of TAR. They are worried because they feel that newer TAR technology is a black box that can’t be explained to a judge. However, in truth, the discovery process from the court’s and the requesting party’s perspective in most cases has always been a “black box,” even well before the days of ediscovery. Before the advent of ediscovery, the process of collection, review, analysis, and production was done in paper form (and I’m old enough to remember those days). Courts did not usually interfere with the means or methods by which a producing party went about its discovery obligations, so long as the party complied with the Rules: the document production was timely, reasonably responsive to the requests, and was organized in a fashion allowed by the Rules (e.g. by individual request, or as kept in the usual course of business). There was little or nothing the producing party needed to explain to the court, unless the producing party ran afoul of the Rules.
The need to explain TAR technologies to a court is disappearing
Fortunately for the practitioner, courts are moving back to this way of thinking. So long as the producing party has complied with its obligations under the Rules, courts are now reluctant to step in and interfere with how the producing party complied. See, e.g., In re Viagra (Sildenafil Citrate) Products Liability Litig., 16-md-02691-RS(SK), 2016 WL 7336411, at *1 (N.D. Cal. Oct. 14, 2016), where the court agreed with Hyles v. New York City, 10-Civ.-3119 (AT/AJP), 2016 WL 4077114, at *2-3 (S.D.N.Y. Aug. 1, 2016), and decided that the producing party was entitled to use the ediscovery tool of its choice. The standard is not perfection, or even using the best tool, but instead the court should be focused on the results. See also Electronic Order, Davine v. Golub Corp., 3:14-cv-30136 (D. Mass. Feb. 2, 2017), ECF 185, where the court wrote “Defendants are entitled to rely on their predictive coding model for purposes of identifying relevant responsive documents, and may cease their review of the documents identified as possibly relevant when they made a good faith determination that the burden of continuing the review outweighs the benefit in terms of identifying relevant documents.”
Thus, the need to explain TAR technologies to a court is disappearing (if in fact such a need ever truly existed), and hence the need for practitioners to retain consultants to explain legal technology to courts should likewise disappear. Consultants who would stand in the way of new technologies because they cannot understand them are perpetuating a dying myth, and are part of the problem preventing more widespread adoption of modern technology in ediscovery, rather than being part of a solution.
Maximizing attorney intelligence (AI2)
Technologies like DISCO’s artificial intelligence (AI) are part of the solution. If artificial intelligence can provide review suggestions to an attorney reviewing documents, who then decides whether the AI suggestions are correct or not, then this methodology is the epitome of maximizing attorney intelligence (AI2). There is nothing about the technology for a consultant to explain to a judge because it is the attorney, not a computer, who is ultimately making the review decision on the document. Indeed, courts are beginning to recognize the interaction and combination of technology with attorney judgment as a superior method. See, e.g., Duffy v. Lawrence Memorial Hosp., 2:14-cv-2256-SAC-TJJ, 2017 WL 1277808, *3 n.11 (D. Kan. Mar. 31, 2017). If, after reviewing a sufficient number of documents, the attorney feels the artificial intelligence recommendations are accurate and has identified the remaining responsive documents, the attorney can sample the remaining corpus of unreviewed documents and decide that either the sample results warrant further review, or that further review is disproportionate to the case. See, e.g., Davine, supra. This approach facilitates the “just, speedy, and inexpensive” resolution of cases, which is the goal expressly stated in Fed. R. Civ. P. 1 and implicitly built into all of the Rules.
Be part of the solution towards a just, speedy, and inexpensive resolution of your client’s case, not part of the problem.