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How to Incorporate TAR 2.0 into Your E-Discovery Case Management Order
JULY WEBINAR
Practice Makes Perfect Tom Gricks, Esq. Mark Noel, Esq.
Presenters
Tom is an experienced commercial litigator and one of the nation's leading authorities on the use of TAR in litigation. He regularly advises clients on best practices for effectively utilizing TAR throughout the litigation process.
Tom Gricks, Esq. Managing Director, Professional Services
Disclaimer: The following presentation is for informational and instructional purposes only, and does not constitute and should not be considered the providing of legal advice of any sort.
Mark Noel, Esq. Managing Director, Professional Services
Mark is a former IP litigator, co-founder of an e-discovery software startup, and research scientist who specializes in helping clients use technology-assisted review, advanced analytics, and custom workflows to deal with large-scale matters.
Presenters
True continuous active learning (CAL)What Do We Mean by TAR 2.0?
▪ Feed it anything you want — judgmental seeds, random seeds, fabricated documents, whatever
▪ Feed it as much (or as little) as you want — it can start with a single document, but will make use of every attorney decision on documents
▪ Contextual diversity sampling will make sure that everything is digested properly
Training is Constant, UbiquitousInsight Predict is essentially omnivorous…
An Overview of Contextual DiversityCatalyst Contextual Diversity SamplingRandom Sampling
n = 80
Continuous Ranking in the Background
Continuous Ranking in the Background
1. Review is training absolutely no delay every single attorney judgment is used
2. No better technology for sparse collections or productions true continuous active learning (CAL) and continuous document ranking
3.Seamlessly incorporates rolling productions simply add new documents to the database and they are automatically ranked
4.Optimizes your ability to find the “unknown” contextual diversity penetrates deeper than random sampling
5.You can simultaneously rank on any criteria, and multiple criteria a single review, with no wasted time
Key Benefits of TAR 2.0 in Litigation
Using TAR 2.0 During Case Management
1. Explore your own documents early
Why Explore Your Own Documents Early?FRCP time constraints
Rule 26(f) conference/report 21/14 days before scheduling conference Rule 26 initial disclosures 14 days after Rule 26(f) conference Rule 16 scheduling order within 120 days of service/90 days of appearance of defendant
Amended Rule 16 is 90 days/60 days Amended Rule 34: RFPs within 21 days of service, effective upon Rule 26(f) conference
Get your house in order identify appropriate custodians identify relevant timelines locate unanticipated documents
Scope offensive discovery custodians keywords
Use TAR 2.0 to Find the Real Players
Eliminate Irrelevant Communications…
… and Locate Truly Important Ones
Refine Critical Timelines and Find Gaps
And Explore Predominant Keywords
Using TAR 2.0 During Case Management
1. Explore your own documents early
2. Use a phased discovery plan
An Approach to Phasing DiscoveryPreliminary identification of opposing party’s custodians
non-binding; evidentiary only
Initial Disclosure of Primary Custodians and Primary Repositories collection window; production pursuant to RFPs; static preservation ceases
Review production; identify opposing party’s Secondary Custodians and Repositories
limited timeframe opportunity to seek protective order collection window; production
Possible opportunity move the Court for additional custodians and repositories
Using TAR 2.0 During Case Management
1. Explore your own documents early
2. Use a phased discovery plan
3. Encourage rolling productions
Encourage Rolling ProductionsAmended Rule 34 will probably require this as an explicit agreement
“… production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.”
Rolling productions minimize the likelihood of a burdensome data dump Insight Predict can effectively parse through a data dump, but why?
Insight Predict can seamlessly manage rolling productions documents get added and automatically ranked for prioritized review contextual diversity locates new unknown documents
The benefits of rolling productions get to know your opponent’s case sooner better plan further discovery
Using TAR 2.0 During Case Management
1. Explore your own documents early
2. Use a phased discovery plan
3. Require rolling productions
4. Evaluate opposing party productions
How to Implement TAR 2.0 on OPP
Use client documents as seeds likely have relevant opposing party documents ranking will likely pull internal documents with acronyms, etc. for better training contextual diversity will grab anything that looks truly out of the ordinary
Simply explore the production for relevant documents keywords; custodians; communications representative documents can then be used as seeds
Use a fabricated document as a seed parsed Requests for Production have been shown to be effective
Using TAR 2.0 During Case Management
1. Explore your own documents early
2. Use a phased discovery plan
3. Require rolling productions
4. Evaluate opposing party productions
5. Incorporate planned, aggressive production deadlines
6. Include mutual and meaningful production metrics
“How complete was my catch?”
Recall Relevant Not Relevant
Search Results
“How pure was my catch?”
Precision Relevant Not Relevant
Search Results
Considerations for Setting MetricsFocus on recall — the most critical metric in litigation discovery
human review averages ~68%; TAR often achieves 90%+ collections vary widely; no guarantees on recall or level of effort
contextual diversity of Insight Predict ensures recall diversity
agree to ONE reasonable statistical measure range of responsive documents in the collection; responsive production
Include precision if there will be no eyes-on review don’t be fooled by F1
Consider whether you really need to see supporting documents
Make sure your production metric is feasible
Metrics must be mutual
Consider incorporating proportionality to manage metrics
Proportionality
Using TAR 2.0 During Case Management1. Explore your own documents early 2. Use a phased discovery plan 3. Require rolling productions 4. Evaluate opposing party productions 5. Incorporate planned, aggressive production deadlines 6. Include mutual and meaningful production metrics 7. Utilize simultaneous privilege, issue and HOT DOC rankings 8. ALWAYS get a 502(d) Order
502(d) ConsiderationsProvide for ability, but not obligation, to conduct privilege review
Provide for express 502(d) coverage regardless of review EXAMPLE:
Regardless of whether an ESI production is so reviewed, or whether any ESI is, or is not, withheld, and pursuant to Federal Rule of Evidence 502(d), the production or disclosure of ESI protected by either the attorney-client and/or attorney work product privilege expressly SHALL NOT constitute a waiver of either privilege in this litigation, or in any other Federal or State proceeding, either generally or with respect to the specific ESI at issue.
Include a similar provision for production pursuant to subpoena
Discussion
You may use the chat feature at any time to ask questionsTom Gricks Mark Noel
Questions?
Tom is an experienced commercial litigator and one of the nation's leading authorities on the use of TAR in litigation. He regularly advises clients on best practices for effectively utilizing TAR throughout the litigation process.
Tom Gricks, Esq. Managing Director, Professional Services
Mark Noel, Esq. Managing Director, Professional Services
Mark is a former IP litigator, co-founder of an e-discovery software startup, and research scientist who specializes in helping clients use technology-assisted review, advanced analytics, and custom workflows to deal with large-scale matters.
