eDisclosure: who's stopping the CAR?

The extent of the use of Computer Assisted Review (CAR), sometimes referred to as Technology Assisted Review (TAR) in law firms in England and Wales is discussed by Andrew Haslam, an independent eDisclosure consultant and founder of Allvision Computing, following his survey of 42 organisations in England and Wales offering the capability of CAR to law firms.

What is CAR?

Computer (or Technology) Assisted Review is an area of much debate within the eDisclosure world. Its supporters see it as a way of taming the massive volumes of review material you regularly see in cases; its opponents as some black box thing that takes work away from lawyers. The process involves a suitably knowledgeable lawyer "training" the computer system so that it can identify potentially relevant documents, which are then reviewed for disclosability by legal staff. The key to the savings is that the material put to one side does not have to be looked at (with the exception of some sampling to prove to the other side that it is irrelevant). In some cases the volume of the material that has to be reviewed can be reduced by 30%, often times it’s by as much as around 50%.

One of the reasons for not adopting it, regularly trotted out by the "anti" brigade is that; "there isn't anyone using CAR in the UK", normally meaning "I haven't used it, so no one can be".

2015 survey

It was to put this theory to the test that I carried out a survey at the start of 2015 of all the 42 organisations within England and Wales who have the capacity to provide CAR to law firms. The full results and detailed analysis of the feedback can be found at the end of this year's edition of my Buyer's Guide to eDisclosure Systems; this article gives you the highlights.

I had feedback from 83% of the companies I approached, and (because most of them identified themselves) I am confident I had responses from all the major "players" in this field. They reported that just under 83% of suppliers in England and Wales used CAR technology during 2014.

Is CAR being used and in what areas?

Suppliers used CAR in more than one area, mostly in Litigation (83%), followed by Regulatory (58%) and Arbitration (38%) with some use in investigating fraud and other areas (8%).

CAR is used by suppliers on average in some 20% of all the matters they support, across Litigation, Regulatory and Arbitration, though this figure varies from 1% to 90% between different suppliers, so the average is of limited value when forming conclusions. That being said, 6 of the 22 suppliers who responded, said that they were making some use of CAR in more than 50% of the cases in which it could have been used.

What is CAR being used for?

Within the Litigation area, the tool was used for more than one option. The main use was to prioritise which potentially relevant documents would be reviewed first, with the intention of reviewing all of the corpus in the end (63%). However, the next most popular use (45%) was to determine potentially relevant documents only, and not look at the ones left behind. Close on its heels was the use in 42% of the cases to carry out QA/QC on the review exercise. Finally 21% of respondents used it to review the material provided by the opposing parties.

I think it's fair to say that CAR is being used in England and Wales. Although the main focus is Litigation, the technology has solid support in both Arbitration and Regulatory matters.

Why didn't suppliers use this technology in cases where it might have been applied?

The answers to that were the most telling. For the majority of the time it was because the law firm did not want to employ the technology (67%), or the opposing law firm objected (21%). In other words it is lawyers who are stopping the CAR, even though it is now a proven, tried and tested technology.

My conclusion?

If you aren't using this technology, then your opponent probably is, and is gaining the benefits of defensible accuracy coupled with massive savings in time and costs, while you are not. And the next time someone says, there is not a lot of use of CAR in England and Wales, you can direct them to this survey.

Andrew Haslam is an independent eDisclosure consultant.