2012 was a milestone year for Technology-Assisted Review (TAR), featuring the first judicial opinions expressly supporting its use by producing parties in litigation. Naturally, there has been a lot of excitement among vendors and e-discovery lawyers. But, despite these historic decisions, there remains little case law addressing how a producing party can use TAR and meet its discovery obligations. The technologies are just starting to be better understood by lawyers and courts (as this author has previously written). As a result, there is a dearth of guidance on best practices in this nascent legal arena.
Not surprisingly, the first few cases addressing TAR have cautiously embraced its use. These decisions collectively promote a high level of cooperation and transparency, including the involvement of opposing counsel in training the system and the sharing of the set of documents used to train the system (referred to as the seed set). The concern among some TAR advocates is that these practices exceed what is required under the Federal Rules of Civil Procedure and that, if these levels of transparency come to represent the minimum legal threshold of cooperation for using TAR, producing parties will be dissuaded from using TAR as a result of the added costs and litigation risks.
Continue Reading Predictive Coding: How Much Transparency and Cooperation Is Required When Using Technology Assisted Review In Litigation?