Technology-assisted review (TAR), also known as predictive coding, continues to gain the support of federal courts. Magistrate Judge Andrew J. Peck of the U.S. District Court for the Southern District of New York, one of the first judges to endorse TAR, recently proclaimed that the right to use TAR for high-volume, electronically stored information [ESI] cases is “now black letter law,” reported Bond Schoeneck King PLLC. Peck’s statement was part of his discussion in Rio Tinto PLC v Vale S.A., et al.
The court’s growing acceptance of TAR is expected to affect all producing parties in future cases, regardless of whether they prefer to use traditional keyword searching instead of predictive coding. “As more courts tout the precision of TAR, requesting parties are ever more likely to demand that producing parties use this sophisticated technology to ensure that the maximum number of responsive documents are being unearthed,” predicted Bond Schoeneck King.
In large-volume ESI cases in which TAR would be appropriate, it may be wise to use the technology from the start and develop a protocol to ensure the selected technology is both defensible and transparent, the attorneys advised. It would maximize cost-savings and minimize the likelihood of expensive discovery disputes.
Some in the information governance community may not be familiar with ESI and the various challenges it poses when conducting discovery for litigation purposes. For an introductory overview, ARMA International recommends the following resources: