The following article is written by Barry Murphy as co-Founder & Principal Analyst of the eDiscovery Journal.

 

At The Cowen Group (TCG) Leadership Breakfast in New York two weeks ago, it was agreed by all technology-assisted review (TAR) is a game-changing, disruptive force in eDiscovery and information governance (IG). At last Thursday’s breakfast in Washington, DC, the conversation shifted a bit to include the happy fact that TAR can help satisfy the needs of many constituents: the corporate Legal department that wants to reduce review costs and have more predictable litigation spend; the law firms that want to make more review dollars at higher margins; and the vendors and service providers that want to develop the expertise to help both corporations and law firms.

Many discussions of the impact of TAR include some talk of the death knell of linear document review. In DC, however, attendees felt that the pie grows for linear review and for TAR; TAR does not steal dollars away from linear review, per se. The fact is that the amount of litigation and regulatory investigations will continue to increase, and the volume of electronically stored information (ESI) increases exponentially in the coming years. The dollars flowing into linear review will continue to grow because of those forces. At the same time, TAR can help reduce review costs on specific matters while also allowing law firms to conduct higher margin reviews. That kind of win-win makes the eDiscovery market a good place to be working for those that can develop TAR competencies.

A large majority of attendees at the breakfast have some experience with TAR, but few have extensive experience. David Cowen brought up a great point: according to the book Outliers by Malcolm Gladwell, it takes a person 10,000 hours of practice to become successful with a given task. Who in the market has that much experience? Who is willing to invest that many hours to become successful with TAR. Most attendees believe that vendors and service providers and law firms are likely to be the trailblazers. It’s possible that those that don’t blaze a trail will get left behind (this idea followed the mention of another great book, The Innovator’s Dilemma by Clayton Christianson).

As much as TAR has great promise, attendees also brought a pragmatic view to the breakfast table. One said that, “TAR is a workflow, not an easy button.” And several law firm workers spoke of the challenge of getting senior partners to buy into an investment in TAR tools and processes. The consistent question from law firm attendees was, “how do you market TAR to partners?” One potential answer is to bring the discussion back to the business of a law firm. It is all about billable hours. And, done correctly, TAR billable hours can be very high margin.

One law firm attendee shared an interesting case study. The firm used TAR and three associates were able to process a data set in 3 weeks, saving over $100,000 in review costs. There was one senior associate (the case lead) and two mid-to-high-level associates. The firm benefited through an improved relationship with the client and retained institutional knowledge—all of the intelligence about the data set would be gone from the firm if contract review attorneys had been used. The associates also gleaned benefits: they are now experienced TAR practitioners and in demand with the firm.

Another attendee talked of the important role that litigation support departments within law firms (who often drive TAR within the firm) will play. Lit support departments will need to be directly involved with clients to talk about how TAR is executed and how to explain it to the opposition. If Lit support departments get this right, they can become profit centers for the firm.

Other attendees represented the corporate perspective. For them, TAR is about cost savings. But, they admitted that it took them several years to grasp the concept and then become comfortable with it. They look to law firms and vendors with experience and the ability to deliver predictable costs for a given matter.

Even with all the benefits, there are concerns about TAR. One attendee mentioned some trepidation around having to potentially share seed sets used in advanced TAR methods like predictive coding with the opposition. That might lead to sharing non-responsive documents, which could open a can of worms. These types of concerns will likely hold TAR back somewhat, but the train is already on the tracks. As the market gains more experience, legal teams will figure out how to explain the TAR methods to the other side and back up the defensibility of the process with results.

The conversation turned to the demand for talent vis-à-vis TAR. Obviously, the ability to practice law competently is required—and TAR promises to ensure that highly qualified lawyers are matched up to the most important documents in a case. But, there are other skills that are necessary. The next TAR professionals will need to demonstrate intellectual curiosity—the ability to learn and understand new skills like statistics, project management, and showcase the ability to communicate. As one attendee said, “the skills you will need for TAR are the skills they don’t teach in law school.”

The next breakfast event is this Tuesday, July 31 in Los Angeles, quickly followed by one on Thursday, August 2 in San Francisco. If you would like to be considered for attendance and participation in future discussions like this week’s shows or others coming up this quarter, please contact TCG Events.