Editor’s Note: The following article is written by one of the winners of “Call for Papers” associated with the Fifth Annual Arizona State University-Arkfeld eDiscovery and Digital Evidence Conference. The conference hosts a competitive annual "Call for Papers" which address the progress, challenges, and future of e-discovery, digital evidence and analytics. The article below was accepted as one of four 2016 winning papers. John William Speros, author of this winning paper, will be a presenter at the conference on March 9-11, 2016 in Tempe, Arizona, at ASU’s Sandra Day O’Connor College of Law. Those interested may sign up for the conference, where until Feb.19 you can take advantage of early-bird rates.
Predictive coding and TAR technology (PC/TAR) help ameliorate a problem that denigrates civil litigation: extortion by discovery when discovery costs “ force settlements for reasons and on terms that related more to the costs of discovery than to the merits of the case.”
More specifically, when searching some particularinformation, in some particularcircumstances, as employed by someparticular people who are pursuing some particular objectives, using someparticular technologies, PC/TAR works well in some particular ways.
The problem is that while PC/TAR has been patented and promoted, it remains void of any particular definition of what it does, how to make it work and its particular limitations.
Interestingly, even without such definitions, some courts express more confidence in PC/TAR than PC/TAR’s own proponents. In the highly influentialDa Silva Moore opinion and order, for example, the court quotes a law review article [emphasis added]:
“Technology-assisted review can (and does) yield more accurate results than exhaustive manual review, with much lower effort.”
Nevertheless, the court bypassed the underlying study’s many significant constraints—not only those mentioned in the article but identified by various experts—and ignored the article’s title which was reiterated as the key conclusion [emphasis added]:
“The results support the conclusion that technology-assisted review can achieve at least as high recall as manual review…”
Therefore, idiosyncratically, the court’s opinion of what PC/TAR technology “does” was more optimistic than the article upon which the court relied.
Normally in its “gatekeeper role”—pursuant to many states’ Frye standard and the federal FRE 702,Daubert, and Kuhmo Tire—courts determine whether evidence is reliable. In Da Silva Moore, however, the court ruled that:
Federal Rule of Evidence “702 and Daubert simply are not applicable to how documents are searched for and found in discovery…”
That conclusion was criticized by various commentators and MJ Waxse, et. al, whose law review article presented his and other judges’ views that:
“[Federal] Rule [of Evidence] 702 and the Daubert standard should be applied to experts with technical expertise or knowledge pertinent to a party’s ESI search and review methodologies and who provide the court with evidence on discovery disputes involving these methods.”
In time this critical legal question will be resolved.
Assuming that PC/TAR’s reliability will be subject the courts’ Daubert review, the first question is:What is PC/TAR? After all, a common definition of PC/TAR consists of using one or more undefined strategies to pursue one or more vaguely defined objectives.
Beyond that:
What are PC/TAR’s purported capabilities?
What are PC/TAR’s known limitations?
But even if those definitions are established, PC/TAR’s reliability faces inherent challenges akin to fingerprint impression and bullet fragment analysis which:
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