VULNERABILITIES IN DISCOVERY TECH.

Recent technological advances are changing the litigation landscape, especially in the discovery context. For nearly two decades, technologies have reinvented document searches in complex litigation, normalizing the use of machine learning algorithms under the umbrella of "Technology-Assisted Review" ("TAR"). The latest technological developments are placing discovery beyond attorney understanding and firmly in the realm of computer science and engineering. As lawyers struggle to keep up, a creeping sense of anxiety is spreading in the legal profession about a lack of transparency and the potential for discovery abuse. Judges, attorneys, bar associations, and scholars warn that lawyers need to closely supervise the technical aspects of TAR and avoid the dangers of sabotage, intentional hacking, or abuse. But commentators have not fully defined what the risks entail, described in detail the potential dangers, or delineated the boundaries of debate. This Article provides a systematic assessment of the potential for abuse in TAR and offers three contributions. First, our most basic aim is to provide a technical but accessible assessment of vulnerabilities in the typical TAR process. To do so, we use the latest computer science research to identify and catalogue the different ways that TAR can go awry, either due to intentional abuse or mistakes. Second, with a better understanding of how discovery can be subverted, we then map potential remedies and reassess current debates in a more helpful light. The upshot is that abuse of technology-assisted discovery is possible but can be preventable if the right review processes are in place. Finally, we propose reforms to improve the system in the short and long term, with an emphasis on improved metrics that can more fully measure the quality of TAR. By exploring the technical background of discovery abuse, the Article demystifies the engineering substrate of modern discovery. Undertaking this study shows that with the right technical knowledge and assistance, lawyers can safeguard technology-assisted discovery without surrendering professional jurisdiction to engineers. [ABSTRACT FROM AUTHOR]