Migrated from eDJGroupInc.com. Author: Barry Murphy. Published: 2012-05-03 09:00:50  It’s time to make a call: the biggest winner in Technology-Assisted Review (TAR) will be…wait for it…expert witnesses.  For those of you not familiar with the role of an expert witness, according to Federal Rule of Evidence 702, “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;(b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and(d) the expert has reliably applied the principles and methods to the facts of the case.” When TAR is involved, such an expert must understand software, review processes and approaches, and advanced statistics – a tall order that will likely lead to hourly rates of over $1,000 for those willing to appear in court and show off their knowledge.From what is happening in the Da Silva Moore case, it’s becoming clearer and clearer that the role of the expert witness will be a critical one.  Last week, Greg Buckles pointed out the importance of measurement with respect to TAR – it is all about how to measure the results of review passes against a predefined threshold of accuracy that is agreed upon by parties and the bench to represent a reasonable and proportional confidence standard.  In reading through transcripts of the hearings in the Da Silva Moore case, one will see just how complex the statistics behind measurement can get.  Thus, each party brings in expert witnesses that can talk to the science.  Still, though, without a PhD in math, it can be easy to get lost in the testimony of these witnesses.I had a chance to be on a panel last week with Judge Andrew Peck (of the Da Silva Moore case) at an ABA event in New York.  Obviously, Judge Peck cannot comment on the specifics of the case, but he did talk about his view of TAR in general.  As he has stated many times before, he does not see the role of the judiciary to approve any kind of “black box” for TAR.  Rather, he wants to see parties address the issues of how to execute TAR upfront.   What judge would want to become an expert in software and statistics so as to be in a position to approve a black box?  Therefore, it will come down to how well the experts can explain and defend their position(s) on TAR in each case.Last week’s newsworthy update that United States District Judge Andrew Carter upheld Judge Peck’s Peck’s February ruling allowing the use of TAR in the Da Silva Moore case only reiterates the importance of using experts to determine the ESI protocol.   As Carter states in his ruling, “the Court adopts Judge Peck’s rulings because they are well reasoned and they consider the potential advantages and pitfalls of the predictive coding software.  The Court has thoroughly reviewed the ESI protocol along with the parties’ submissions…the ESI protocol contains standards for measuring the reliability of the process and the protocol builds in levels of participation by Plaintiffs.”  The ruling also points out that if the process does not work to the satisfaction of the Plaintiffs, they have recourse down the line, stating, “further, upon the receipt of the production, if Plaintiffs determine that they are missing relevant documents, they may revisit the issue of whether the software is the best method. At this stage, there is insufficient evidence to conclude that the use of the predictive coding software will deny Plaintiffs access to liberal discovery.”The only issue I have with the wording of this opinion is the use of the term “predictive coding software.”  As eDJ has pointed out several times, the software itself is only one component of TAR; also critically important are the workflows used and the measurement.  That is where experts come in – setting up the ESI protocol and explaining to Judges how that protocol can be measured and defended.  Certainly, software vendors will be beneficiaries of these rulings (hence all the press releases and misinterpretations of “ordering” the use of TAR, or “approving” a certain TAR product).  But, the real winners will be expert witnesses who can command hundreds (or even thousands) of dollars per hour to dissect how TAR is implemented in various cases.eDiscoveryJournal Contributor – Barry Murphy

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