Yesterday, we began our interview with Christine Payne of Redgrave LLP and Michelle Six of Kirkland & Ellis LLP, who, in a recent article on Law360 (subscription required, also available here) proposed a new framework for using TAR in the context of civil litigation. Here is the conclusion of our interview.
Describe your report card system for achieving TAR transparency and what you hope that it will accomplish to simplify cooperation between counsel in cases where TAR is used.
Michelle: I know our article was 3000+ words, but it probably didn’t have to be. This is a very simple idea. Parties pick whatever review methodology they like. They don’t have to negotiate protocols ahead of time, or even describe the methodology. They just have to develop a process and do it, knowing that at the end, they will face quality-control sampling and a report card. The report card is standardized so that parties don’t try to report only favorable metrics, hiding the rest. And the report card contains information that would allow the other party and the court to “trust, but verify.”
And in terms of what we hope it will accomplish, it’s twofold. First, cut off the expensive and unhelpful preemptive negotiation and/or fighting over protocol. Second, level the playing field in terms of “transparency” for TAR v. other methods. In other words, eliminate the current double standard.
Have you used your report card system in an actual case yet?
Christine: Yes. We’ve exchanged something very similar to this form in a number of cases, one in which I was very proud to report a 98.7% recall. And in those cases, the forms were really the only thing that mattered at the end of the day. It made me wonder why in the world we were spending so much time and money negotiating all the details ahead of time, if the only thing anybody really cared about were the final results.
We’ve certainly seen several case rulings related to TAR over the years, some of which you cite in your article. What do you think that courts can do to streamline the discovery process in cases where TAR is used?
Michelle: Use the form! Judges can and should figure out what is a reasonable time for document review and production, and then set a date that the forms must be exchanged and a date on which any resulting disputes must be resolved, either by agreement or by the court. Judges that make sure document discovery is done before depositions start have a very special place in our hearts.
I love that you propose your report card form as a “Prototype Form” and actively encourage feedback. What feedback have you received so far and what is your plan for incorporating and communicating updates to the form?
Christine: Feedback has been fantastic, and the article has only been out for a little over a week. People are really giving great ideas, trying to think through whether this could be a viable option. We’ve even heard from a judge or two. So far, we’re hearing some common themes:
- Form needs to be definite about the population sampled for final recall and precision numbers. If a party collected a large data set, then used various culling techniques (date, key words, etc), then should the sampling be done on the total collection population? Probably so, though there may be certain cases where that’s not true. The chart should shake that out.
- Form needs to include how recall and precision are calculated.
- Form needs to detail whether there is consistency between how a sample is drawn and how a sample is reviewed, at the document level or family level.
- Form might need to include the number of responsive privileged documents identified.
- Should consider taking OUT the de-nisting numbers.
- Should the form require at least some description of methodology?
Our dream scenario would be to get a lot of smart folks in a room – plaintiffs’ and defense lawyers, in-house counsel, judges, statisticians, data scientists – and hammer out something workable. Since we’re not allowed out of our houses at the moment, maybe we will take all the initial feedback and offer a prototype 2.0, or maybe we can have the nerdiest Zoom call ever. All options seem exciting. We’ve heard some responses are coming by blog or otherwise, and we are very happy to have reignited a discussion.
On the prototype form, the authors state “Please let us know what you would add, change, or take away” and provide an email address (email@example.com) to contact them with suggestions. It will be interesting to see how the framework proposed by Christine and Michelle evolves from here with your feedback!
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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