Ride the Lightning

EDRM Releases Final TAR Guidelines

February 11, 2019

EDRM has released its final TAR (technology-assisted review) guidelines. Hat tip to Doug Austin and his eDiscovery Daily Blog, which published a post on February 8th discussing the new guidelines.

As Doug notes, the TAR Guidelines have gone through a lot of review. In addition to the public comment period last year, it was discussed in the last two EDRM Spring meetings (2017 and 2018), presented at the Duke Distinguished Lawyers’ conference on Technology Assisted Review in 2017 for feedback, and worked on extensively during that time.

More than 50 volunteer judges, practitioners, and eDiscovery experts contributed to the drafting process over a two-year period. “We wanted to address the growing confusion about TAR, particularly marketing claims and counterclaims that undercut the benefits of various versions of TAR software,” said John Rabiej, deputy director of the Bolch Judicial Institute of Duke Law School, which oversees EDRM. “These guidelines provide guidance to all users of TAR and apply across the different variations of TAR. We avoided taking a position on which variation of TAR is more effective, because that very much depends on facts specific to each case. Instead, our goal was to create a definitive document that could explain what TAR is and how it is used, to help demystify it and to help encourage more widespread adoption.”

The 50-page document contains four chapters: The first chapter defines technology assisted review and the TAR process. The second chapter lays out a standard workflow for the TAR process. The third chapter examines alternative tasks for applying TAR, including prioritization, categorization, privilege review, and quality and quantity control. Chapter four discusses factors to consider when deciding whether to use TAR, such as document set, cost, timing, and jurisdiction.

“Judges generally lack the technical expertise to feel comfortable adjudicating disputes involving sophisticated search methodologies. I know I did,” said Magistrate Judge James Francis IV (Southern District of N.Y., Ret.), who assisted in editing the document. “These guidelines are intended, in part, to provide judges with sufficient information to ask the right questions about TAR. When judges are equipped with at least this fundamental knowledge, counsel and their clients will be more willing to use newer, more efficient technologies, recognizing that they run less risk of being caught up in a discovery quagmire because a judge just doesn’t understand TAR. This, in turn, will further the goals of Rule 1 of the Federal Rules of Civil Procedure: to secure the just, speedy, and inexpensive determination of litigation.”

If TAR is still mysterious to you, this sounds like a document you might want to read.

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