Technology Assisted Review

Responding parties have significant discretion to design and deploy technology assisted review (“TAR”) workflows in a manner they determine is reasonable and proportional for the case.  At least that’s what the Northern District of Illinois suggested in its September 2020 ruling in Livingston v. City of Chicago (N.D. Ill. No. 16 CV 10156).

Livingston is a gender discrimination case challenging the City of Chicago’s Fire Department’s (“City”) application process.  The City collected roughly 1.5 million documents in the matter, and based on search terms agreed to following an earlier e-discovery dispute, culled this set to roughly 192,000 emails.  The City then informed Plaintiffs it intended to use TAR – and specifically Relativity’s Active Learning technology – to review this culled data set.

Plaintiffs objected to this approach and argued the City should be required to produce all documents that hit on search terms.  On this point, the Court rejected Plaintiffs’ argument, finding:  “While the City may dump all 1.3 million pages of documents on Plaintiffs with entry of a Rule 502(d) order, it also has the right to perform a review to produce only those documents that are responsive and relevant.”  (Emphasis added.)  In the alternative, Plaintiffs argued that if the City were allowed to use TAR, TAR should be run across the entire ESI collection, not the universe culled by search terms.

Magistrate Judge Young B. Kim ruled that the City was permitted to use TAR on its culled search universe.  In reaching this decision, the Court made several notable findings:


Continue Reading Federal Court Supports Discretion In Party Use of Technology Assisted Review

EDRM and the Bolch Judicial Institute at Duke Law recently released Technology Assisted Review (TAR) Guidelines (Guidelines) with the aim “to objectively define and explain technology-assisted review for members of the judiciary and the legal profession.” Among the topics covered are the validation and reliability measures practitioners can use to defend their TAR processes. This post summarizes this validation and reliability guidance, which has the potential to be a widely-referenced authority on this topic going forward.

According to EDRM, there are no “bright-line rules” governing what constitutes a reasonable review or one standard measurement to validate the results of TAR. Instead, principles of reasonableness and proportionality as set forth in FRCP Rule 26 generally guide the inquiry.
Continue Reading EDRM’s TAR Guidelines: Validity Measures and Considerations for Practitioners

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.
Continue Reading U.S. Tax Court Approves Predictive Coding for Litigation Use

After early concerns about the defending the results of the technology and whether courts would accept its use, Technology Assisted Review (“TAR”) has now entered the spotlight as an alternative to more traditional forms of document review. These technologies, commonly referred to as predictive coding, continue to win over both clients and counsel, who have

We are pleased to announce the publication of a report titled “Data Law Trends & Developments: E-Discovery, Privacy, Cyber-Security & Information Governance.” The report explores recent trends and anticipated future developments on critical issues related to the intersection of technology and the law, which affect a wide range of companies and industries. In addition, the report highlights key cases and issues to watch in 11 areas of data law, including: information governance, cybersecurity, social media, technology-assisted review, criminal law, regulatory, cooperation, privacy, cross border transfers, bring your own device (BYOD), and privilege.
Continue Reading Crowell & Moring Releases “Data Law Trends & Developments” and Announces Expanded “Data Law Insights” Blog

The State Bar of California may soon deem an otherwise highly skilled attorney to be “incompetent” in the practice of law if he or she does not know the basic steps to take with respect to electronic discovery and does nothing to fill that gap in knowledge. On February 28, 2014, California’s State Bar Standing Committee on Professional Responsibility and Conduct tentatively approved a Proposed Formal Interim Opinion for a 90-day public comment distribution, which analyzes a hypothetical fact pattern of an attorney who makes egregious mistakes in e-discovery.
Continue Reading California State Bar Offers Guidance on Attorney’s Ethical Duties in Handling E-Discovery

I recently published an article for InsideCounsel addressing ways companies can reduce risk and costs in litigation. I advocate appropriate self-help.

Unfortunately, the courts, regulators, and legislators have not fully kept up with the extraordinary pace of technological developments, the proliferation of ESI, and the growing use of social media, cloud computing, and other ESI-related

In a Valentine’s Day order, Judge Denise Cote of the Southern District of New York ruled that the defendants in a set of complex mortgage-backed securities cases could not use documents obtained through discovery in related litigation in the Central District of California. This even included documents that purportedly should have been produced in the New York cases. The court’s ruling rests primarily upon pragmatic notions of efficiency, fairness, and reasonableness—and its reasoning may prove useful beyond the four corners of these cases.

The New York cases are FHFA v. HSBC N. Am. Holdings, Inc., et al., Nos. 11 Civ. 6189, 6190, 6193, 6195, 6198, 6200, 6201, 6202, 6203, 6739, and 7010 (DLC) (S.D.N.Y.). (This litigation also has been referenced as FHFA v. UBS Americas Inc., No. 11 Civ. 5201, based on a component case that has since settled.) The California litigation includes FHFA v. Countrywide Financial Corp., No. 12-cv-1059-MRP (C.D. Cal.), among other cases.
Continue Reading Court Restricts Cross-Litigation Discovery, Rejecting Perfection in Discovery including with Predictive Coding

On October 1st, I attended an all-day series of presentations hosted by Huron Legal Institute and Sandpiper Legal LLP in New York, which included several leading federal jurists and well-regarded practitioners offering their insights.

The event featured five hypothetical cases covering a range of topics, with attorneys appearing before one of more of the judges to conduct a mock discovery conference or to argue motions. This structure proved to be an engaging means of discussing the issues, and the more astute members of the audience recognized that a couple of the scenarios were drawn from recent cases, including the Biomet case that I discussed a few months ago and Pippins v. KPMG, which we posted about last year. The format also played to the judges’ strengths, allowing them to tease out issues and express their opinions. While the discussion was “off the record”, I will discuss the overall themes and provide some highlights (without attribution) of the discussions of predictive coding and proposed amendments to the Federal Rules on proportionality and preservation.
Continue Reading Report From Huron’s E-Discovery Advocacy Institute