John Rabiej is the deputy director of the Bolch Judicial Institute at Duke Law and oversees operation of EDRM, a professional organization that develops practical resources to advance e-discovery and information governance. Rabiej previously served as the director of the Duke Center for Judicial Studies for five years, the executive director and judicial outreach director at The Sedona Conference for one year, and head of the office staffing the Judicial Conference’s six rules committees for 20 years. He has written extensively on e-discovery, including chapter 37A of Moore’s Federal Practice, and he co-authored with Judges Lee Rosenthal and David Levi the Federal Civil Procedure Manual, Juris (2014). He has written more than 20 articles on e-discovery for the LexisNexis Emerging Issues series of expert commentaries and published numerous articles on rules-related issues, including the meaning and purposes of rule amendments.
Rabiej: The TAR Guidelines provide an objective explanation of how TAR works. The document is aimed particularly at members of the bench and bar who are unfamiliar with TAR. The guidelines are freely available on the EDRM website.
Rabiej: Three teams of 50 volunteer judges, practitioners, and e-discovery experts led initially by Matt Poplawski (Winston & Strawn), Mike Quartararo (eDPM Advisory Services), and Adam Strayer (Paul, Weiss, Rifkind, Wharton & Garrison) drafted the guidelines. Tim Opsitnick (TCDI) and James Francis (U.S. magistrate judge, ret., now a distinguished lecturer at the City University of New York School of Law) joined the team leaders and edited the draft to address the many useful public comments and suggestions.
The guidelines represent a consensus document and contain compromises. Like all documents issued by the Bolch Judicial Institute, the guidelines do not necessarily reflect the views of the Institute, Duke Law School or its faculty, or any other organization, including the Judicial Conference of the United States or any other governmental unit.
Rabiej: We wanted to address the growing confusion about TAR, particularly marketing claims and counterclaims undercutting the benefits of various versions of TAR software. TAR 1.0 and TAR 2.0 are the two most commonly marketed versions. Although one or the other version may be more prevalent, both continue to be widely used. These guidelines provide guidance to all users of TAR and apply across the different variations of TAR. The TAR Guidelines assiduously take no position on which variation is more effective, which may depend on case-specific facts.
Rabiej: Discovery cost is a principal factor to consider in evaluating proportionality under Rule 26. The explosion of electronically stored information has made human linear review of documents cost prohibitive. Technology offers a realistic solution. Machine-learning methods, like TAR, have been used for more than a decade in other industries to assist in critical decision-making. Judges share with lawyers the responsibility to ensure that discovery is proportional to the needs of the case. In heavy volume, text-laden discovery cases, a judge should explore the use of TAR or an equally effective means of technology.
Rabiej: The future of discovery is clear. Lawyers must rely more and more on technology to meet their obligations to ensure that discovery is proportional to the needs of the case. Judges are expecting that means of technology will be used to defray discovery costs. Lawyers should apply the new technological means or have a very good reason for not doing so.
Rabiej: In 2012, RAND published an in-depth analysis of litigation costs and found that discovery represented the lion’s share. The study devoted an entire chapter to the promise of “predictive coding,” machine-learning technology relied upon for many years in other industries, as the obvious solution to an ever-growing volume of ESI. One of the authors of the RAND study was shocked to learn that the technology has yet to be accepted universally in the legal world. And yet, we still have not seen widespread adoption of TAR.
There simply is no good reason why millions of dollars need to be continually wasted using traditional discovery means. Changes in legal tradition come slowly, but we can no longer procrastinate when discovery costs continue to explode, while effective technology lies idle. The bench and bar need a push, and we hope to provide it.
Rabiej: The guidelines are an important first step. Based on this foundation, we are currently developing a TAR protocol or exemplar on when and under what circumstances TAR should be used. We have more than 40 judges, lawyers, and e-discovery experts working on that project.
We will follow up with an invitation-only, bench–bar conference June 20-21, in Washington, D.C., to evaluate the 2015 amendments to the federal discovery rules. (https://judicialstudies.duke.edu/conferences/upcoming-conferences/) Proportionality is a key theme, and the promise of technology as an effective and cheaper means of discovery will be fully examined. The results of three separate surveys of federal judges, seven major bar organizations, and lead counsel in cases closed within the past 12 months will be presented and analyzed.
EDRM also will convene a conference later this year devoted exclusively to developing a consensus document, endorsed by prominent data scientists in the legal and other industries, corporate officials, plaintiff and defendant practitioners, and discovery service and software providers, to advocate the use of machine-learning methods over traditional discovery means.
We also will explore whether it now makes sense to expect that in cases involving large volume and text-laden document discovery, machine learning or equally effective technology will be presumptively used for discovery unless an articulable justification is presented. The traditional deference to the producing party’s choice of discovery means, no matter the cost, may need to be reexamined in light of the court’s responsibility to independently assess proportionality and society’s call to lower litigation costs. It is an important “access to justice” issue.