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 On Oct. 1, 2018, an amendment to the Rules of the Commercial Division of the Supreme Court took effect codifying the Commercial Division’s support of the use of technology assisted review (TAR) during discovery. Specifically, Commercial Division Rule 11-e(f) encourages parties to “use the most efficient means to review documents, including electronically stored information (ESI), that is consistent with the parties’ disclosure obligations…and proportional to the needs of the case. Such means may include [TAR], including predictive coding, in appropriate cases.” Further, parties are prompted to “confer, at the outset of discovery and as needed throughout the discovery period, about [TAR] mechanisms they intend to use in document review and production.”

This amendment evidences the increasing approval of the use of TAR to assist in and expedite discovery. Although no published decisions have thus far addressed Rule 11-e(f), practitioners can glean guidance from the expanding universe of case law that discusses the use of TAR (including predictive coding). This article provides an overview of relevant case law and identifies trends that may inform how Commercial Division courts will apply Rule 11-e(f).

TAR Used to Review ESI

In Da Silva Moore v. Publicis Groupe, 287 F.R.D. 182 (S.D.N.Y 2012), a court, for the first time, sanctioned the use of “computer-assisted review” as a means to search and cull ESI. In Da Silva Moore, the court, facing a number of disputes regarding TAR, stated:

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