The use of technology-assisted review to accelerate document-laden legal proceedings is picking up, with courts, regulators, and plaintiffs alike wanting to resolve disputes more efficiently and more accurately.
“The trend to use technology-assisted review is gaining steam,” says David Remnitz, a forensic technology leader for EY who helped author a handbook on the practice, which is seeking to address the huge onslaught of digital information to be searched and analyzed in many legal proceedings. “This will continue to pick up steam on a more rapid basis over the next several years.”
Technology-assisted review involves the use of technology to facilitate document review as part of the discovery process in legal proceedings. Since the recession, there simply aren’t enough trained human eyes to scan through the volumes of digital documents that are relevant to large-scale litigation disputes, such as class actions, antitrust cases, and sometimes employment disputes, says Remnitz. “There’s been a significant drive toward automation post-recession,” he says. “The recession squeezed out a great deal of the optionality of the cost associated with large-scale discovery exercises.”
The handbook, titled Insiders’ Guide to Technology-Assisted Review, explains the evolution of TAR and its growing use in litigation and investigation. It provides a structural analysis of TAR and a summary of case law on predictive coding, or the coding applied to elicit review results. It also covers the economics of TAR in terms of cost and value.
Eric Johnson, EY executive director, says the technology is gaining acceptance with regulators as well as in private legal actions across all industries. “We’re also seeing some action in information governance,” he says, where companies are using TAR to determine what information they must keep to comply with any relevant regulatory requirements or document retention policies, and what can be destroyed. “Data is becoming almost exponentially created, and that can become a liability over time,” he says. “It’s possible to use TAR to help identify data that you might want to explore purging from the system.”
The use of the technology is growing globally, says Remnitz, in Japan, and in parts of South America, Latin America, and Europe. And its gaining acceptance in terms of reliability, he says. “Historically, there was a great deal of hesitance to rely on automated or machine-based systems to make decisions on document sets as part of the overall discovery process,” he says. “In the last 24 months or so, courts and regulators have become quite comfortable with TAR as part of the overall discovery chain. They see it as a viable way to cut through the massive expense and increase the accuracy of reviews.”