Technology Assisted Review (TAR) and the legal landscape

By Danny Myburgh

Over the past two decades, legal discoveries haven’t changed, but the scope of most criminal and civil litigation has grown exponentially. More than 2.5 quintillion bytes of data are created every day. If you’re struggling to comprehend how much that is, you’re not alone. However, what’s important to understand is that because we are creating new data every millisecond of the day, the eDiscovery process has become complex, time-consuming, and costly. This is made even more complicated because data is created in various structured and unstructured formats


According to LexisNexis, more than 97% of business documents are created electronically. In 2020, the South African Law Reform Commission published a research paper titled Investigation into legal fees – Including access to justice and other interventions. It was revealed that in South Africa, the general approach is that electronic documents are printed for discovery purposes.


Let’s put that into context. The average South African legal case includes an average of more than 5GB of data. Text files consist of a whopping 677 963 pages per gigabyte. Multiply that by five and consider how many pages are being reviewed and printed in the average eDiscovery process.


The role of Technology-Assisted Reviews 

Legal teams are finding themselves sifting through hundreds of thousands of gigabytes of data per case in civil and criminal cases. This is compounded by the fact that clients are not always sure if they have preserved their data correctly, where it is stored, or what their legal teams need.


To bring the amount of data down to a manageable level in a legal case, successful eDiscovery begins with the electronic document review process. This involved finding and tagging documents and data that are discoverable and relevant to the case.


In 2015, the Rand Corporation published a study revealing that reviewing electronic documents makes up the most significant percentage of eDiscovery production costs at 73% of all expenses. Data collection consumes 8% of expenditures, and costs for processing are around 19% in typical cases.


To handle the rapid expansion of large quantities of data tied to litigation and the rising costs associated with reviewing that data, technology-assisted review (TAR) has become standard practice in the eDiscovery process.


The key benefits of technology-assisted review (TAR)

Technology-assisted review (TAR) software uses machine learning and artificial intelligence to analyse massive data sets, identify and tag potentially discoverable documents, and provide statistics, categorisation, and reporting data that requires less hours to produce than human reviews and is superior based on the fact that it reduces the chances of human error or missing documents entirely.


Key benefits of TAR include:

All relevant documents are found and tagged. In the absence of TAR software in the electronic document review process, teams of entry-level lawyers or paralegals are required to review documents for eDiscovery manually. The enormous volumes of data that must be reviewed can lead to human error.


TAR increases access to courts. TAR reduces the time and costs associated with electronic document review. This means that civil disputes that would have previously been settled to avoid lengthy legal battles can now be taken to trial.


TAR increases the likelihood of early case resolutions. Legal teams can quickly and effectively evaluate the potential merits of a case, thanks to TAR. This informs potential value of the case and whether a settlement should be pursued. It also supports the legal team’s ability to formulate a broad strategy early on in the dispute, avoid unnecessary litigation expenses, and mitigate a client’s risk and potential exposure.


Better cases are built through the early detection of information. An early command of the facts gives litigators a critical tactical advantage in how they structure a case. For example, the difference between losing and winning a dispute can come down to knowing which documents to seek from the opposing party, whom to depose, and the best affirmative defences to pursue. TAR systems update in real-time, which means relevant documents will also continue to be found as cases develop and trial strategies change.