Technology-Assisted Review (or TAR): is the use of technology to support your reviewers through the document review process. This could be anything from the basic automation of menial tasks to the complex algorithms found in cutting-edge ‘Continuous Active Learning’ technology.
Being able to work with the very best Legal Tech has to offer is exciting and brings a great many benefits, however, due to the constantly evolving nature of cutting-edge technology, there is seldom any past precedent from which to draw conclusions on how new practices will be received by the courts. This often leaves room for doubt regarding what practices are admissible and defensible in a court of law.
What Do the Rules Say?
The rules governing the procedures British courts must follow in order to justly handle all cases were last updated in 1998 and apply to all cases commencing after 26th April 1999. While the Civil Procedure Rules 1998 make no specific mention of TAR, being published before this kind of technology rose to prominence, they do support the automation of the eDiscovery process.
From CPR1998 pt.31b p.25-27 (see below) we find that the use of keyword searching, and other automated methods of searching are acceptable, so long as they are quality checked by a human reviewer/ not used as the sole method of searching without supervision. This gives a hint towards the court's willingness to accept emerging technology as it finds its place in legal procedure.
CPR pt.31b p.25-27 - Keyword and other automated searches:
25- It may be reasonable to search for Electronic Documents by means of Keyword Searches or other automated methods of searching if a full review of each and every document would be unreasonable.
26- However, it will often be insufficient to use simple Keyword Searches or other automated methods of searching alone. The injudicious use of Keyword Searches and other automated search techniques –
(1) may result in failure to find important documents which ought to be disclosed, and/or
(2) may find excessive quantities of irrelevant documents, which if disclosed would place an excessive burden in time and cost on the party to whom disclosure is given.
27- The parties should consider supplementing Keyword Searches and other automated searches with additional techniques such as individually reviewing certain documents or categories of documents (for example important documents generated by key personnel) and taking such other steps as may be required in order to justify the selection to the court.
