Technology-assisted review (TAR)—an algorithm-based method of reviewing documents for relevance—is a powerful tool that can improve the accuracy of document review while reducing cost. Some litigators have been reluctant to utilize it for fear of expensive collateral litigation about its implementation. Numerous decisions have endorsed TAR; however, they also reveal that courts may insert themselves into the discovery process under the guise of transparency. In Winfield v. City of New York, No. 15-CV-05236, 2017 U.S. Dist. LEXIS 194413 (S.D.N.Y. Nov. 27, 2017), the court went so far as to order the production of samples of nonresponsive documents to satisfy the plaintiffs’ request for transparency.

Below, we review Winfield against the backdrop of three significant TAR cases authored by S.D.N.Y. Magistrate Judge Peck, as well as other illustrative cases, and offer the following best practices so litigants can retain control of their TAR workflow and maximize its efficiencies:

1. Counsel should be prepared to educate the court and opposing counsel on applicable electronic discovery law and foundational principles.

2. The Federal Rules of Civil Procedure apply a reasonableness standard; they do not require perfection. Counsel should be prepared to leverage the metrics and statistics provided by most TAR systems to establish that their process was reasonable and defensible.

3. Counsel should evaluate what, if any, aspects of their TAR process they will share to demonstrate cooperation, a practice many courts have found meaningful, when addressing challenges.

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