The main message from attendees at The Cowen Group (TCG) Leadership Breakfast in New York last Thursday is that technology-assisted review (TAR) is a game-changing, disruptive force in eDiscovery and information governance (IG). TAR has the potential to change the way that law is practiced, according to one distinguished panelist. To harness the power of TAR, however, the legal industry must change. Instead of slowly adopting new technologies and ways of conducting business, the industry must begin experimenting with innovative solutions in order to keep pace with the demands of corporate clients.
As mentioned in a previous post, eDJ is attending the Q3 breakfast series organized and hosted by TCG to learn what attendees think of TAR and how it will impact the eDiscovery market. TAR promises to speed the process of document review and help lawyers get to the merits of a case quickly even when faced with a deluge of digital data. One panelist at the roundtable shared a compelling story: her firm reviewed 1.1 million documents in six hours for less than $5,000. The economics of document review are irreversibly changed. And lower review costs are exactly what corporate America is demanding.
An offshoot discussion about the economic and business model impact of TAR arose. The general assumption has always been that TAR will eliminate some of the dollars in the linear document review market. Attendees were not so sure. One believes that TAR is currently cutting into about 10% – 15% of the total linear review market, but another pointed out that the volume of digital information continues to grow exponentially, thus buoying the overall review market size. The general consensus, though, is that TAR will impact the flow of revenue in the review market and contract review teams will be the clear losers of this transition. Whether or not law firms will stand to gain or lose revenue will depend on their current approach to tackling first pass review. Those who kept the process in-house may see a decline in revenue while those who outsourced the service will stand to regain this stream of revenue in this new non-commoditized market.
Given the promise of TAR, the obvious question is, “what is stopping the market from rapid adoption?” According to the panelists at breakfast, what holds TAR back is the skeptical legal market itself. There are too many myths and misconceptions that put a seed of doubt in the minds of partners at law firms. One law firm litigation support director said that the hardest part of adopting TAR is selling the benefits to the firm leaders and to clients. Another litigation support director put it more bluntly and said that there are “too many Luddites in the firm.” The Legal industry has always been slow to adopt new technologies (anyone remember WordPerfect?), but the market is at a tipping point with TAR. One panelist spoke at length about the opportunity for law firms to gain competitive advantage by learning how to use TAR now. After all, if you are using TAR and your opponent isn’t, there should be advantages both in managing costs and setting legal strategy more quickly.
In order to take advantage of TAR, eDiscovery professionals need to begin experimenting now. TAR is so nuanced (it combines technology, statistics, and legal expertise) that one can only understand it through actual trial and error. One panelist suggested setting up a sandbox within the law firm and using a TAR tool on small projects to learn how the technology works and how the statistics support it. A deep understanding of TAR will be critical. After all, law firms have the duty to supervise the process of discovery. One attendee spoke of the risk of a senior partner’s head being on the block because it can be challenging to supervise a black box with an algorithm. This can lead to senior associates being more in control of TAR within their law firms because they can (and are motivated to) learn the technology and the statistics that go with it. One caution from a panelist: trust, but verify. TAR is about bringing some level of automation to the review process; verification and quality control will be key to defensibility and the more verification, the more trust TAR will gain in the market.
That leads to one of the unintended benefits of TAR – it will produce better law firm associates. As one panelist put it, “the people that learn and embrace TAR will rise to the top.” Granted, TAR expertise is no guarantee that the associate will have the legal chops to be a master legal strategist, but associates that learn TAR should be better at eDiscovery at the very least.
Attendees at TCG breakfasts are thought leaders; they have played with TAR and been in the trenches. This crowd understands what needs to happen for TAR to gain mainstream adoption. One attendee believes that more consistent court decisions and rules about how TAR can be used are necessary. There is always the fear that what works in one jurisdiction won’t work in another and that, without more consistency, adoption of TAR will be slowed. Another attendee pointed out the need for more standard pricing from vendors. Currently, TAR pricing models are all over the place, making it harder for consumers to understand if various solutions will make economic sense. More standard pricing models will also allow consumers to better compare available solutions against each other
For anyone looking to experiment with or utilize TAR now, the panelists offered some sound advice for anyone looking to procure a TAR solution:
- Make customer service a priority. You want your service provider to answer a call at 2:00am if a case is blowing up.
- Match the solution to the case at hand. Not all cases are the same and different solutions may be called for depending on the complexity of the case.
- Go for an experienced provider. No one wants to be a guinea pig.
- Be sure the service provider has trained project managers. Ask how many PMs are employed and ask for details on what kind of training those PMs get.
- Make sure the provider can support your process. There is variance in the way that tools are designed and a provider’s tool must be able to support your process and your data without incremental costs.
The next breakfast event is this Thursday, July 26 in Washington DC. If you would like to be considered for attendance and participation in future discussions like next week’s show or others coming up this quarter, please contact TCG Events.