The San Diego County Bar Association has published an ethics opinion relevant to electronic discovery issues. San Diego County Bar Association Formal Ethics Opinion 2018-3 poses the question:
To what extent may lawyers use technology assisted review to identify documents to be produced in response to demands for production requiring analysis of voluminous documents?
The opinion concludes that:
Whereas lawyers may use technology assisted review products to identify responsive documents for productions, they should communicate with their clients about such use, must take care to understand the products they use, and may not cede their independent judgment.
The opinon’s scenario describes the use of so-call TAR – technology assisted review, a system that uses artificial intelligence to identify responsive documents, a process that is described as entailing continuous active learning. “Lawyer has used the particular technology before. After Lawyer provides the recommended amount of seed sets appropriately identifying documents as responsive or not responsive, the software uses the information to analyze the remaining documents. Lawyer next conducts a random review of the documents identified, provides some additional seed set samples to eliminate some documents erroneously identified as being responsive, and runs the results again. Lawyer then produces the several hundred thousand documents identified as being responsive.”
The opinion offers useful guidance to lawyers about the ethical parameters of using cutting edge techology. The full opinion is available here.