The Benefits of

Technology
Assisted Review
SKY DISCOVERY

BY NATHAN WIGGINTON
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What is Technology Assisted Review?

Technology Assisted Review (TAR) is the use of computer software to automatically review
documents in large legal cases. TAR is powered by a process called predictive coding. Predictive
coding is when software uses analytics technology to learn from human coding decisions and then
continues making these coding decisions autonomously.

Due to the high volume of electronically stored information that may be relevant to a dispute in
modern litigation cases, it is impractical for individuals to review all documents. However, with TAR,
reviewers code documents as usual, while the computer-assisted review works behind the scene.
The software maps patterns between documents coded a certain way and then propagates these
decisions to conceptually similar documents found elsewhere in the database. This method of
review is quicker and more accurate than a traditional review, while considerably reducing costs.

The process of predictive coding requires an initial step of a lawyer reviewing a small subset of
documents for relevancy to develop a seed set of documents. This seed set is then used to train the
computer software, which will then rank documents based on their likelihood of relevance to the
case.

The predictive coding process is iterative, and a lawyer will repeatedly review subsequent document
sets sent by the computer to verify and improve the softwares accuracy. After several such
iterations, the software program will reach a threshold of accuracy and can code the rest of the
documents in the database without direct human intervention.

Assisted review workflow diagram:

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When is Technology Assisted Review Appropriate?

The industry standard stipulates that TAR is appropriate for cases with upward of 25,000 documents.

Other factors to consider when thinking about using TAR would be: review deadlines, smaller legal
teams that require assistance to review large volumes of data, proportionality of cost, and the type
of documents in the data set i.e. whether there would be low volumes of relevant and privilege sets.

The Benefits of Technology Assisted Review

Time - Computer-assisted review is faster than a

traditional review.

Cost - The software can drastically cut the

number of lawyers required to undertake a
review.

Accuracy - Computer assisted review offers substantially higher accuracy levels and more
consistency than a human document review.

Conceptual Search - A conceptual search understands the broader concepts of a case and is not
bound by a simple keyword search.

Communication Analysis - Computer assisted

review can determine and visually represent whole
conversations between various individuals allowing
a lawyer to get a clear understanding of who said
what to whom and when.

Technology Assisted Review Case Law in Australia &

Internationally

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Following two Australian court cases, the Supreme Court of Victoria issued a Practice Note (SC Gen 5
Guidelines for the Use of Technology), that came into effect on 30th of January 2017. These cases
and Practice Note demonstrate the growing acceptance of technology assisted review in Australian
courts. In McConnell Dowell Constructors v Santam Ltd Ors 2016 VSC 7341 Justice Vickery allowed
the first use of TAR in Australia. In this case, there were
approximately 4 million electronic or PDF documents that using The evidence establishes,
de-duplication was reduced to 1.4 million documents. In making that in discovery of large
the recommendation for the use of TAR for the remaining data sets, technology
documents, Justice Vickery quoted favourably from past Irish assisted review using
High Court case Irish Bank Resolution Corporation Limited & Ors predictive coding is at least
v Sean Quinn & Ors which stated The evidence establishes, that as accurate as, and, probably
in discovery of large data sets, technology assisted review using more accurate than, the
predictive coding is at least as accurate as, and, probably more manual or linear method in
accurate than, the manual or linear method in identifying identifying relevant
relevant documents. Further commenting on eDiscovery, documents
Justice Vickery stated that employing a traditional manual
discovery process can work to place the cost-benefit of Justice Fullam in Irish Bank Resolution
conducting litigation in a large document case at serious risk. Corporation Limited & Ors v Sean Quinn
& Ors [2015] IEHC 175, quoted with
Both the United States and UK judiciary have embraced TAR. In approval in Dowell Constructors v
the United States, the case of Da Silva Moore v. Publicis Santam Ltd Ors 2016 VSC 734.
2
Group was a pioneering case that allowed TAR to be used for
the first time. Judge Peck stipulated that case law has
developed to the point that it is now black letter law that where the producing party wants to utilize
TAR for document review, courts will permit it." In the UK, the case of Pyrrho Investments and MWB
Business Exchange v. MWB Property,3 Master Matthews of English High Court allowed the parties to
use predictive coding. In his precedent-setting decision, Master Matthews cited 10 factors that led
him to favour approving predictive coding in the case, including: [t]here is no evidence to show that
the use of predictive coding software leads to less accurate evidence than, say, manual review
alone. Technology Assisted Review is being domestically and globally recognised by the judiciary as
a better way to handle large document discoveries.

1
(No 1) [2016] VSC 734.
2
No. 11 Civ.1279 (ALC) (AJP) (S.D.N.Y. April 26, 2012).
3
[2016] EWHC 256 (Ch) (16 February 2016).

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Technology Assisted Review Summary

With proper training, the technology assisted review can speed up review, cull down irrelevant
documents and allow human reviewers to find the most relevant documents as early as possible.
This ultimately saves time and money as there are fewer lawyers needed and less time spent on a
human review.

While statistical sampling and an analytics engine form the basis for a computer-assisted review, its
the human element, the lawyer providing a seed set for the computer to learn off and managing the
computer-assisted review for consistency, that ensures computer-assisted review is an effective and
defensible process.

Technology Assisted Review has come to mean more than simply reviewing and coding documents
on a computer. It now indicates a process where lawyers use computer software as indispensable
tools to search and find relevant evidence in a big data setting. This is the needle in the haystack
problem that is a core issue of e-discovery.

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