Technology-assisted review (TAR) has become a ubiquitous tool in the arsenal of discovery counsel. Recent scholarly research has established that TAR processes are less costly than traditional manual review, and yield superior results. This is especially true in large-scale, eDiscovery projects that involve collection, review, and production of millions of documents. While most practitioners are becoming comfortable with TAR, lawyers may encounter an opposing party arguing to a court that the use of TAR will result in the non-production of large amounts of relevant data. Resources at your eDiscovery provider can be an important ally in overcoming such objections and, if need be, succinctly explain to the courts the basics of TAR.
The first widely reported court opinion to consider use of TAR was Da Silva Moore v. Publicis Groupe. The case considered an employment dispute against the American subsidiary of a French owned advertising and public relations firm (“MSL”). The allegations involved gender discrimination, pregnancy discrimination, violations of the Family and Medical Leave Act, and violations of the Equal Pay Act. In an approved agreement on “predictive coding protocol” between the parties, the Court discussed the drawbacks of conventional keyword searching and manual review. The Court argued that conventional systems are often “over-inclusive” and produce large number of irrelevant documents. Consequently, the Court in the “MSL” case determined that the use of predictive coding was appropriate because the document volume was vast and that computer-assisted view technologies were superior to manual review, as well as more transparent and cost effective. The Court also used this case to write an extensive analysis of “computer-assisted review,” and offered advice to future litigants and courts to consider TAR as a serious tool in litigation practice.
TAR in the eDiscovery Process
All types of courts are beginning to defer to TAR in the discovery process. In a tax court case (Dynamo Holdings Ltd. P’ship v. Commissioner of Internal Revenue), the IRS objected to the petitioner’s request to use predictive coding in discovery. The IRS argued that predictive coding was an “unproven technology” but again, the court examples that “petitioners may use predictive coding in responding to respondent’s discovery request” and it the “request is incomplete” then a motion to compel may be filed at that time.
Case law has established use of TAR as a valid and effective eDiscovery tool. While its use may still garner objections from parties that have not been exposed to the technology or courts that may not be as technology-savvy as some, a TAR expert at your eDiscovery provider can be a valuable resource. Provider experts can help you frame arguments and overcome objections in an accurate, brief, and to-the-point statement. As the Da Silva case shows, courts may be open to having a TAR expert present during court hearings and conferences as petitioners are discussing TAR protocols. When choosing your eDiscovery provider, ensure their experts on staff who can help you successfully navigate this process.