When a large-scale litigation or investigation begins at your company, managing the collection of electronic information becomes an issue of both strategic legal importance and cost management. Increasingly, technology assisted review (“TAR”) – also referred to as predictive coding or computer-assisted review – provides the best way to work strategically and efficiently in the gathering, reviewing, and production of relevant electronic data. Recent judicial decisions reveal that resistance to the use of TAR in litigation is vanishing. See, e.g., Rio Tinto PLC v. Vale S.A., 306 F.R.D. 125, 127 (S.D.N.Y. 2015) (noting that “the case law has developed to the point that it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it”); Dynamo Holdings Ltd. P’ship v. Comm’r of Internal Revenue, Nos. 2685-11, 8393-12, 143 T.C. 183, 192 (T.C. 2014) (recognizing that “predictive coding [is] widely accepted for limiting e-discovery to relevant documents and effecting discovery of ESI without an undue burden”). One area of concern, however, lies with the identification and withholding of privileged information.
Should You Use TAR for Privilege Review?
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