Yes, even during the pandemic, people are looking for better ways to manage Technology Assisted Review (TAR) and provide transparency into the process. In a recent article on Law360 (subscription required, also available here), Christine Payne of Redgrave LLP and Michelle Six of Kirkland & Ellis LLP proposed a new framework for using TAR in the context of civil litigation. Christine and Michelle were nice enough to sit down with me for an interview to discuss the framework, how it came about and where they see it heading from here.
The article detailed the inconsistent standards applied to TAR versus attorney review, as well as the need to recognize that the benefits of TAR can be eviscerated by lengthy negotiations and overbearing protocols. The authors proposed a technique to reduce cost and contention, addressing legitimate concerns about the accuracy of large-scale responsiveness reviews while also mitigating unhelpful and expensive arguments over process.
About The Authors
Christine Payne is a nationally-recognized advocate specializing in eDiscovery and litigation strategy. She handles all aspects of case strategy and discovery for complex commercial litigation, restructuring-related litigation, products-liability litigation, antitrust matters, Section 220 requests, and ongoing or anticipated investigations. Before joining Redgrave in May 2019, Christine was a partner at Kirkland & Ellis, where she led the Firmwide Electronic Discovery Committee. At Redgrave, Christine leads the Restructuring Discovery group and is the chair of the firm’s Diversity Committee. Christine lives in Austin, TX and is the mom of two cool kids, Ty and Addie.
Michelle Six is a partner in Kirkland’s New York office, where she focuses exclusively on electronic discovery law, concentrating on creating, monitoring, and implementing best practices and strategies for e-discovery. As Vice-Chair of the Firmwide Electronic Discovery Committee, she leads the Firm’s eDiscovery efforts and counsels clients on litigation readiness, developing eDiscovery strategy, and data privacy considerations and compliance. She frequently speaks at conferences and CLE programs on issues and solutions related to electronic discovery. Michelle is a Chambers-ranked attorney and mother of two budding Shakespeare lovers, Oliver and Emma.
Part 1 of our interview is being published today. We will publish the conclusion tomorrow.
What has been your experience with regard to TAR approaches and how did that lead the two of you to develop this new proposed framework involving a “report card” system?
Michelle: TAR definitely can be faster and cheaper than attorney review, and so it’s pretty attractive to clients. But a lot of them end up rejecting the idea. They don’t want to create an opening for contentious opposing counsel to come in and make a lot of unnecessary hay, creating discovery disputes and driving up attorneys’ fees. I know there a lot of plaintiffs’ attorneys out there who feel like you have to be up in everybody’s business to get reliable results. And that’s too bad, maybe it’s reflective of defense attorneys being too … defensive? Some parties also see it as too risky because they don’t trust the idea of technology identifying relevant documents as reliably as actual live humans, and the available research isn’t always convincing for them. So the promise of TAR as the “review of the future” hasn’t really taken off. If we can re-orient the discussion to focus on results in real-world scenarios, we think everyone benefits.
Why do you think that lawyers are so much more demanding of transparency with TAR approaches than they are with traditional attorney review?
Christine: Because they can be. In the early days of TAR, any doubts about the technology’s capabilities were smoothed over by offers of unprecedented transparency. It made TAR very attractive, but also set us up in this weird posture where using TAR now opens a door to enhanced transparency that isn’t required with traditional attorney review.
We’re just getting started! It’s another cliffhanger! Tune in for the conclusion tomorrow!
So, what do you think? Have you had cooperation challenges with opposing counsel over TAR? Please share any comments you might have or if you’d like to know more about a particular topic.
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