How can a defective TAR process impact discovery deadlines?

What Is One Issue Defendant Airline Companies Can’t Fly Away From? A Defective TAR process.

Author: Maria A. Grajales
Case Citation: In Re Domestic Airline Travel Antitrust Litigation, No. 15-1404, 2018 WL 4441507 (D. D.C. Sept. 13, 2018).
Employee/Personnel/Employer Implicated: Outside Counsel, Information Technology Professional

eLesson Learned: Although TAR is a useful document review tool, attorneys cannot blindly rely on the accuracy of this process. Attorney and discovery specialist must be careful and ensure that this process is functioning properly and is based on accurate metrics or risk delays in the litigation process.
Tweet This: Airlines cannot fly away from an ineffective TAR process but must deal with the consequences of a discovery extension.

Practitioners are increasingly becoming “tech savvy” and are taking advantage of technology to facilitate the practice of law, specifically in the area of discovery. TAR, which stands for technology-assisted review, is one such tool that has cut the time and costs associated with discovery. TAR combines technology and analytical processes in order to help practitioners sort and review voluminous discovery requests. Its successes, however, are not without issues, and it is incumbent on practitioners to ensure the accuracy of the TAR process relied on.

In Re Domestic Airline Travel Antitrust Litigation highlights the importance of ensuring that the TAR process relied on functions properly and that the parties are complying with TAR protocols. In this case, the court granted Plaintiffs’ motion for an extension of time to complete discovery after plaintiffs discovered an issue with Defendants’ document production.

Bad metrics leads to more work.

Plaintiffs claimed that Defendants relied on a deficient TAR process that produced “more than 3.5 million [core] documents to the Plaintiffs, but . . . only approximately 17% or 600,000, of the documents produced are responsive to Plaintiffs’ requests,” thereby rendering Defendants’ TAR process unreliable. Plaintiffs, thus contended, and the court agreed, that this deficiency in Defendant’s TAR process merits an extension to the discovery deadlines.

To ensure that the TAR process was effective, the parties entered into a validation protocol whereby Defendant was required to validate the accuracy of its TAR process by “reviewing a statistically representative sample of documents.” Upon reviewing the TAR validation metrics relied on by Defendants, Plaintiffs found that the TAR process was alarmingly deficient.

In fact, the metrics revealed a mere precision rate of 16.7%. After further investigation, Defendants revealed that “it had incorrectly reported the control set metrics . . . .” This revelation led Plaintiffs to conclude that the TAR process previously relied on was grossly inaccurate and that they would need to review all 3.5 million documents themselves.

The importance of accurate metrics.

An effective TAR process depends on accurate metrics. This means that practitioners cannot rely on a particular TAR process if the metrics upon which the process depends on are skewed or inaccurate. Defendants here acted improperly when they shared with Plaintiffs a TAR process that was based on inaccurate metrics. This caused Plaintiffs to rely on those results. Based on those results Plaintiffs agreed to a set of discovery deadlines. Plaintiffs arguably would not have agreed to that particular discovery schedule had they known that they would be responsible for analyzing 3.5 million documents as opposed to 600,000 documents. If the TAR process was correct from the beginning, Plaintiffs would have likely asked for a longer discovery period and would have eliminated the need for litigating a discovery extension.

From this grave mistake, practitioners are reminded of the importance of ensuring that TAR processes and the metrics upon which these process’ rely are accurate. Practitioners should check with the IT, discovery, and/or metrics specialist that are responsible for calculating and putting these together that all calculations and standards are followed accurately. The best practice would be to double check the metrics and TAR process before they are shared with the opposing party.

Maria is a third-year law student at Seton Hall University School of Law and is expected to graduate in January 2020. She earned a B.A. in Political Science from Montclair State University in 2015. Maria is interested in the area of complex litigation.

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