The State of Technology-Assisted Review in 2014

In 2013, technology-assisted review (TAR) became more than just a judicially approved discovery tool: it became a recognized method for reducing the costs of discovery.

Indeed, several courts have now used TAR to reject the claims of parties who asserted conducting discovery amounted to an undue burden. For example, in Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK), 2013 U.S. Dist. LEXIS 36353 (S.D.N.Y. Mar. 15, 2013), the court rejected a nonparty law firm’s 186 pages of objections responding to an allegedly burdensome subpoena duces tecum. Not only did the law firm have a stake in the underlying judgment of $18.2 billion, but the court chastised the firm for relying on attorney review instead of looking to TAR or other methods to reduce the cost. In a prior order, it had “urged the parties to analyze . . . whether and to what extent predictive coding could ‘reduce the burden and effort’ required to comply” with the subpoena. In a footnote citing U.S. Magistrate Judge Andrew J. Peck’s decision in Da Silva Moore v. Publicis Groupe SA, the court noted that TAR is “an automated method that credible sources say has been demonstrated to result in more accurate searches at a fraction of the cost of human reviewers.”

Similarly, in Harris v. Subcontracting Concepts, LLC, Civ. No. 1:12-MC-82, 2013 U.S. Dist. LEXIS 33593 (N.D.N.Y. Mar. 11, 2013), the court granted the Department of Labor’s motion to compel the defendant to respond to its subpoena, finding it did not impose an undue burden. The court had previously narrowed the scope of the subpoena and  “imposed representative sampling in order to make the demand for documents more reasonable” and noted that the production of 45,000 documents in electronic form, as well as in hard copy, was reasonable. The judge remarked, “With the advent of software, predictive coding, spreadsheets, and similar advances, the time and cost to produce large reams of documents can be dramatically reduced.”

Although these cases addressed discovery under subpoenas, their principles apply equally to every phase of e-discovery. With this type of judicial support for TAR, and others we’ve seen the past few years, the pertinent question is evolving from defensibility to usage. Parties need to investigate how they can make the best use of this versatile cost-reduction and quality-control tool throughout the course of discovery.

To learn more about the responsible implementation of TAR, please join us in The TAR Workroom at LegalTech on February 6, 2014.

Laurie Stoni is an eDiscovery Consultant with Conduent. She can be reached at info@conduent.com.

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