On September 17, the U.S. Tax Court in Dynamo Holdings Ltd. P’ship v. IRS, 143 T.C. No. 9 added itself to the growing list of courts that have approved the use of predictive coding in litigation.
As we have previously noted, predictive coding or Technology Assisted Review (“TAR”) has increasingly been utilized in large scale document productions in a wide variety of litigation and government investigation matters. However, not all parties and authorities have embraced the use of TAR, perhaps due to litigation’s adversarial nature, or a latent fear that technological tools will somehow miss key documents that a manual document-by-document review would otherwise catch. As the body of cases and research articles grows, however, courts and academics have largely rejected these concerns in favor of the more efficient, less expensive, and, arguably, more accurate document discovery that predictive coding offers. Yet in many jurisdictions, the use of predictive coding in litigation still remains untested.