Technology Assisted Review (TAR) in Litigation

This assignment examines the role of Technology Assisted Review (TAR) in legal litigation. It delves into the efficiency, cost-effectiveness, and fairness aspects of TAR, highlighting how it can expedite processes and reduce expenses. While acknowledging that human oversight remains crucial, the document argues for TAR's potential in aiding justice through its consistency, responsiveness, and timeliness. It also encourages further research on improving manual review processes within the framework of TAR.

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TAR AND CIVIL LITIGATION
Introduction
An interplay of humans and computers, Technology Assisted Review
(hereafter, TAR) in the management of commercial litigation, is viewed as an
empowering, modern, cost-effective and efficient alternative to the exhaustive manual
and time-consuming manual review of legal documents1.
This paper is contextualised with an understanding of what TAR is in order to
critically examine the benefits and effectiveness and weighs them against the
limitations that the technology presents.
The decision judgment handed down by Vickery J in the case of McConnell
Dowell Constructors (Aust) Pty Ltd v. Santam Ltd & Ors (No 1) [2016] VSC 734
(McConnell) is considered amongst a number of cases and incidents that TAR was
utilised. It will be critically discussed and argued that the benefits that flow from the
use of TAR in civil litigation do outweigh the problems that will be identified in this
regard and superior results are accomplished through the use of the technology.
TAR in the management of commercial litigation
TAR extensively relies on computers for purposes of carrying out an electronic
review of documents. It relies extensively on predictive coding. This is a type of
coding technique that automatically makes predictions based on the needs of a
researcher.2 TAR has been recognised as a process of document discovery, whereby it
is possible for a human to look to interact with a computer program with the intention
of then locating documents that are relevant to a particular case.3
TAR takes the input from humans regarding documents that are labelled
relevant or non-relevant and draws deductions vis-a-vis other similar documents. The
1 Herbert L. Roitblat et al., ‘Document Categorization in Legal Electronic Discovery: Computer
Classification vs. Manual Review’ (2010) 61 J. AM. SOC’Y. FOR INFO. SCI. AND TECH.
2 http://www.skydiscovery.com.au/wp-content/uploads/2017/03/The-Benefits-of-Technology-Assisted-
Review.pdf
3 John Tredennick, ‘TAR for Smart People: How Technology Assisted Review Works and Why It
Matters for Legal Professionals’ Catalyst(2015).

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computer software will finally order the number of documents chosen for review by
relevance so as to then be able to guide the process of review.
The Courts opinion in McConnell Dowell Constructors (Aust) Pty Ltd v. Santam
Ltd & Ors (No 1) [2016] VSC 734
Justice Vickery's decision in the case of McConnell could be said to reflect a
growing trend by international jurisdictions to use TAR to simplify the document
discovery process in cases of civil litigation. His Honour endorsed the idea of using
predictive coding in the discovery process. In the view of Justice Vickery, arbitration
normally involves issues pertaining to the implementation of a contract. Therefore,
use of technology to de-duplicate will help in the reduction of about 4 million
documents to be read, to about 1.4 million. This is an aspect that was identified in the
Irish Bank case4. In the view of the High Court, TAR is an accurate method of
identifying documents. Consequently, Justice Vickery recognised that the time and
expense involved with using traditional methods to review this kind of material would
be prohibitive. As a result, there was a need to look to use TAR to reduce the volume
of material to be reviewed to a far more workable number of documents in the
thousands.
The Importance of McConnell Dowell Constructors (Aust) Pty Ltd v. Santam Ltd &
Ors (No 1) [2016] VSC 734
The Supreme Court's decision in this case is significant because it was the first
in Australia to order TAR's use to reduce the time and effort otherwise typically
involved with discovering documents in cases of civil litigation (see Vickery, 2015
and Warren, 2015 – see also Money Max Int Pty Limited (Trustee) v. QBE Insurance
Group Limited [2016] FCAFC 148). In so doing, the decision of the Court in this case
in Australia followed several other major western jurisdictions, including the UK5, the
Republic of Ireland6 and the United States of America7.
4 Irish Bank case Resolution Corporation Limited & Ors v. Sean Quinn & Ors [2015] IEHC 175
5 Pyrrho Investments Limited & Anr v. MWB Property Limited and Others [2016] EWHC 256 (Ch).
6 Irish Bank Resolution Corporation Limited & Ors v. Sean Quinn & Ors [2015] IEHC 175.
7 Rio Tinto Plc v. Vale SA (S.D.N.Y. Mar. 2, 2015) 1:14-cv-3042.

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The decision in this case, arose after a number of Practice Notes which
endorsed the use of electronic technology for purposes of ensuring that civil litigation
is effective. A good example is Practice Note SC Gen 5, which recognised the use of
technology in matters of civil litigation. From this Practice Note, it was observed that
technology plays an important role in modern communication, and a large number of
communication processes are now carried out through the use of technological tools,
and this includes the storage of communication documents (Supreme Court of
Victoria, 2017).
Consequently, this Practice Note looked to expressly encourage the use of
electronic documentation in civil litigation so that the use of ‘hard copy' will be the
exception that needs to be justified (Supreme Court of Victoria, 2017). This is
because, in the large cases in particular, it is believed that TAR will usually be an
accepted method for completing document discovery in civil litigation that a court
may order regardless of whether the parties involved actually consented to it
(Supreme Court of Victoria, 2017 – see also Federal Court of Australia, 2016).
Benefits of using TAR in civil litigation
Due to the extensive development of Australia as a commercial hub, the courts
and practitioners have a number of opportunities,8 so the legal system must operate in
an efficient way to cater for the needs of individuals and businesses. The benefits
considered in regards to TAR's use in cases of civil litigation include significant time
and cost savings.9 It has been found that the amount of data to be reviewed in
litigation is significantly increasing on an annual basis meaning that there is a need to
look beyond the traditional review process to reduce both the time and costs involved
for the end client.
It was also discovered that cases that have used analytics went through four
times as many documents as those cases not utilising the technology.10 It is
understood that TAR's use may serve to significantly reduce how many documents
need to be reviewed in a particular case. This means that it is easier to efficiently and
8 Warren, M. (2015) ‘Australia – A vital commercial hub in the Asia Pacific region: Victoria – a
commercial hub’ (Speech delivered at the Federal Court and Supreme Court Commercial Seminar,
Monash Law Chambers, Melbourne, (2015).
9 Christopher Paskach, Eli Nelson and Mathew Schwab, The Case for Technology Assisted Review and
Statistical Sampling in Discovery Position Paper for DESI VI Workshop (ICAIL Conference, 8 June
2015)
10 Nathan Wigginton, The Benefits of Technology Assisted Review, (2016) Sky Discovery

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quickly review legal documents that are useful to a particular case11. This in turn helps
the courts to implement the provisions contained in section 56(1) of the Civil
Procedure Act. This section requires the courts to facilitate a quick and fast resolution
of disputes.
Note that, predictive coding helps to identify the most relevant documents to
use in litigation, and avoids an overlap of documentations, a process that is also
known as Jaccard index. This is an index where independent assessors are able to
identify a number of documents as relevant.12 Note that, when there is an overlap
between the independent assessors, chances of a delay occurring are high, and this
may be expensive to the litigants, thus frustrating the intentions of using TAR.
Moreover, this can affect the accuracy of getting the most needed documents for
review.
Additionally, concept clustering, where technology clusters similar types of
documents together and disregards irrelevant clusters of documents can aid in
achieving the overarching purpose. Outstandingly, despite the fact that the use of
TAR can increase the speed with which the document discovery process in
completed, nothing is lost in terms of accuracy when it comes to those documents that
are relevant in a specific instance (as long as the process has been appropriately set
up).
This is given to the fact that unlike a human assessor that could potentially suffer
review fatigue, TAR does not experience such weaknesses and chances of it being
consistent and reliable are high. Additionally, lawyers who use the TAR system can
benefit from the conceptual searches that TAR allows. It will enable them to get
relevant documents that can enable them understand the concepts of the case they are
handling. TAR can create greater uniformity between courts as well as ensure public
confidence in the legal system, as it will seek to reduce waste of public resources
arising from adjournments and settlements in situations where parties simply cannot
afford trial.
11 ibid 8 (FIX IT)
12 http://scholarship.richmond.edu/cgi/viewcontent.cgi?article=1344&context=jolt

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TAR and Marginalized Litigants
Technology assisted review has the capability of helping marginalized litigants to
ensure that they are able to have an access to justice. There are a number of ways that
TAR assists marginalized litigants. One such was is the capability of TAR to save
legal costs. Because TAR uses technology, it is easier for litigants to have an access to
a number of legal information that are relevant to litigants, and this is because they are
generated electronically.
This saves time and costs of accessing legal aide, since, it avoids the use of human
reviews for purposes of having an access to documents that can help in a litigant’s
case. Human reviewers normally charge a high price for their services; thus, TAR
assists in eliminating them.
Note that, there are a variety of ways that marginalized litigants can use TAR to
assist them in their legal cases. Nonetheless, TAR uses an algorithm that searches
through a large amount of data, for purposes of getting relevant information that can
be useful in building a case or defending oneself. It is very fast and more accurate
than the use of a manual review. On this basis, TAR helps in saving time, which can
be used to focus on other areas that are of interest to a marginalized litigant.
TAR and Reduction of Business Legal Costs
TAR is very useful in reducing the legal costs of business organizations. For
instance, the application of TAR begins with the review of an expert, who has
extensive knowledge of the case that the business organization is facing. The expert
will then code the documents and come up with an algorithm which will enable the
business organization to have an access to thousands of data that can help in their
case. This process is very efficient, and has the capability of saving up to 80% of the
legal costs associated with business litigation.
Therefore, the capability of a business organization to have an access to millions
of data, through the use of technology is the main reason that TAR helps in reduction
of business legal costs. Moreover, the reduction of business legal costs cannot create
an increase in litigation cases, because it is cheaper. This is because it will help to
reduce conflicts that may lead to litigation, because of the ease in which people will
have an access to justice.
Problems of using TAR in civil litigation
Problems associated with TAR's use in cases of civil litigation include the fact
that its use needs to fulfil the standard of reasonableness that is associated with

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discovery's production of documents to produce viable results. 13 The use of TAR is
also somewhat flawed because it is only as reliable and reasonable as the human
element involved so that the costs and time taken could be significantly increased.14 In
addition, although the TAR process may be quicker than more traditional review
processes, estimating the number of training rounds TAR requires producing viable
results and/or lower the document count in a particular case.15 TAR also has
limitations regarding the type of documents it can review and analyse.
It cannot be used for some old hard copy documents or data sets, including
drawings or spreadsheets.16 This may appear due to the fact that the copy is too poor
or theoretically void for the system to be trained reliably. Finally, there is a need for
senior lawyers to review the results that are generated. This is because, unlike a linear
review that may be able to rely solely upon junior lawyers, TAR's use needs
documents to be reviewed by an expert in the field with the particular law firm in
question (i.e., the senior lawyer).17 This final step in using TAR may appear
problematic for senior lawyers since it may be necessary for them to allocate further
time to evaluate the results generated in a given case.
Another problem that may arise out of the use of TAR is the notion that a large
percentage of documents may be left unreviewed. This is because TAR prioritizes a
review, based on a certain algorithm, and this may result to ignoring a large
percentage of documents, that may be useful to the litigant.
Conclusion
13 Technology and the Law Committee (2017) ‘Technology Assisted Review’ (Law Tech Essentials,
Law Institute of Victoria, June)
14 Gordon Cormack and Maura Grossman, Engineering Quality and Reliability in Technology Assisted
Review (2016).
15 Butterfield, W. P., Crowley, C. R. and Kenney, J. ‘Reality Bites: Why TAR's Promises Have Yet to
be Fulfilled’ (DESI V: Workshop on Standards for Using Predictive Coding, Machine Learning and
Other Advance Search and Review Methods)
16 Technology and the Law Committee (2017) ‘Technology Assisted Review’ (Law Tech Essentials,
Law Institute of Victoria, June)
17 John Tredennick, TAR for Smart People: How Technology Assisted Review Works and Why It
Matters for Legal Professionals Catalyst (2015).

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Whilst it is clear that there are a number of particular benefits that are
associated with the use of TAR in cases of civil litigation involving significant
numbers of documents, there are also a number of notable disadvantages that are
associated with the use of TAR that could impact upon the effectiveness of the
process. However, it must be noted that a number of Australian and International
judges have made positive extra-judicial comments about the technology and a
number of organisations have publicly expressed enthusiasm for predictive coding in
regulatory matters. Vickery is also noted in a leading case of VICBAR CPD as
denoting that an important factor that a modern day judge should consider is reducing
the time of hearing a case, and eliminating delays18.
It has also been proven through facts and statistics that TAR is efficient and
does not prolong the process of examining documents. With the proper training and
legal knowledge, human judgment, strong judicial management, technological literacy
and open mindedness, TAR can help in eliminating delays and save money during the
process of legal litigation.
Given that TAR's use has been recognised as being efficient, cost effective,
and able to produce just results and be fair to litigants through its consistency,
responsiveness and timeliness, the fact that it is still reliant on a human element
should not rule out TAR's use to aid the achievement of justice in a given case.
Moreover, future research and work on the use of TAR should address issues such as
how technology can help in improving the manual review of legal documents19.
List of Authorities
18 ‘Recent Developments in Discovery in Commercial Litigation’, 5 February 2015, VICBAR CPD
Seminar, Hon Justice Peter Vickery……….
19 http://scholarship.richmond.edu/cgi/viewcontent.cgi?article=1344&context=jolt

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Legislation
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Practice Notes
Federal Court of Australia (2016) Practice Note – Technology and the Court Practice
Note, 25 October.
Supreme Court of Victoria (2017) Practice Note No SC Gen 5 – Technology in Civil
Litigation Practice.
Supreme Court (2008) Practice Note No SC Gen 7 – Use of Technology, 9 July.
Cases
Da Silva Moore v. Publicis Groupe et al (2012) 287 F.R.D 182
Irish Bank Resolution Corporation Limited & Ors v. Sean Quinn & Ors [2015] IEHC
175
McConnell Dowell Constructors (Aust) Pty Ltd v. Santam Ltd & Ors (No 1) [2016]
VSC 734
Money Max Int Pty Limited (Trustee) v. QBE Insurance Group Limited [2016]
FCAFC 148
Pyrrho Investments Limited & Anr v. MWB Property Limited and Others [2016]
EWHC 256 (Ch)
Rio Tinto Plc v. Vale SA (S.D.N.Y. Mar. 2, 2015) 1:14-cv-3042
Articles, Books and Chapters
Butterfield, W. P., Crowley, C. R. and Kenney, J. ‘Reality Bites: Why TAR's
Promises Have Yet to be Fulfilled’ (DESI V: Workshop on Standards for Using
Predictive Coding, Machine Learning and Other Advance Search and Review
Methods)
Cormack, Gordon and Maura Grossman, Engineering Quality and Reliability in
Technology Assisted Review (2016).
Douglas, Oard et al., Evaluation of information retrieval for E-discovery (2010), 347
(365), ARTIFICIAL INTELLIGENCE & LAW 347

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Herbert L. Roitblat et al., Document Categorization in Legal Electronic Discovery:
Computer Classification vs. Manual Review, 61 J. AM. SOC’Y. FOR INFO. SCI.
AND TECH. 70, 70 (2010).
Paskach, Chrstopher, Eli Nelson and Mathew Schwab, The Case for Technology
Assisted Review and Statistical Sampling in Discovery Position Paper for DESI VI
Workshop (2015).
Technology and the Law Committee (2017) ‘Technology Assisted Review’ (Law
Tech Essentials, Law Institute of Victoria, June)
John Tredennick, TAR for Smart People: How Technology Assisted Review Works
and Why It Matters for Legal Professionals’ Catalyst (2015).
Marilyn, Warren, A vital commercial hub in the Asia Pacific region: Victoria – a
commercial hub (2015).