Editor’s Note: The author of this post works at Xerox Litigation Services, an eDiscovery company.
By Gabriela Baron, Senior Vice President, Xerox Litigation Services
As technology-assisted review (TAR), also known as predictive coding, becomes widely used among law firms and corporate legal departments as a way to quickly and cost-effectively winnow down large document collections, new ethical questions are raised. Many of the issues involve tenets of basic discovery and litigation ethics, but since there is limited case law around TAR, it is necessary to look to a number of sources for direction.
Knowing where the ethical and legal minefields are, how they relate to TAR and how to avoid even the appearance of impropriety will enable legal teams to utilize TAR in a way that is defensible and strategically useful. Here are some scenarios to test your knowledge in this important area:
Q:At the meet-and-confer, opposing counsel surprises you by asserting their client’s plan to use TAR. Are you properly prepared to represent your client’s interests?
A:Comment 8 to ABA Model Rule of Professional Conduct 1.1 requires lawyers to “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” Lawyers need not become statisticians to meet this duty, but they must understand the technology well enough to oversee its proper use.
Q:You believe TAR would be useful in a particular matter. Are you able to effectively communicate the pros and cons to your client?
A:ABA Model Rule 1 requires lawyers to consult with clients about the means of accomplishing their objectives and to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions.” Lawyers must be able to explain the risks, benefits and logistics of TAR to clients and keep them apprised of the status and changes to the process. One critical difference between TAR and keyword search is that TAR adapts and “learns” as it works its way through the data, so communication and informed consent is critical.
Q:Opposing counsel asks you to share the seed set used in your TAR process. Should you?
A:ABA Model Rule 1.6 addresses technology’s impact on confidentiality and requires lawyers to make “reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” One controversial issue in this area is whether to produce the seed set of documents used to train the TAR algorithm, which will include nonresponsive documents and lawyers vary in their willingness to do this. Given the emphasis on cooperation, parties may want to share the seed set but mitigate the risk of inadvertent disclosure through clawback agreements, sensitivity logs, auto-redaction tools and quality control procedures.
Q:Your firm’s technology team and e-discovery providers seem to be expert in TAR. Can you let them handle the TAR process?
A:ABA Model Rule 5.3 puts the onus on lawyers to ensure that their service providers act ethically. Thus, the responsibility for every phase of discovery rests on the client and its lawyers, not third parties. Lawyers should carefully vet their team to ensure that it has sufficient knowledge to construct sound methodologies and the ability to supervise third parties enlisted to their cause.
Q:Your adversary asks about your measurement process and production metric. Are you prepared to discuss this?
A:TAR methodology is very complex, since the technology is “deciding” on some level based on human inputs what documents are likely responsive. When predictive coding is poorly designed, there is a risk that adversaries may not have access to evidence that should have been produced. Developing a proper methodology requires a significant degree of knowledge build a defensible plan, including proper results metrics, to meet the duty of fairness and access to evidence. The ability to explain the process, measurements and metrics (and knowing when to bring in an expert to discuss these areas in detail) is critical. TAR and other advancements are proceeding far faster than the rules and court rulings. Attorneys should be sure to test out hypothetical issues ahead of time so that they are prepared when real scenarios play out in court…where the stakes are certainly much higher.