Technology Assisted Review

Crowell & Moring recently published its Litigation Forecast 2013. This report explores critical litigation issues, provides concise, forward-looking perspectives on trends, and identifies cases to watch in ten areas of law affecting a wide range of companies and industries in 2013 and beyond. The report includes a discussion of significant e-discovery developments, focusing on

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.
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A Vice Chancellor of the Delaware Chancery Court has ordered both parties in an indemnity dispute relating to the 2011 sale of the Hooters restaurant chain to utilize predictive coding and a shared e-discovery vendor, even though neither party sought such an order.

In EOHRB, Inc. v. HOA Holdings LLC, C.A. No. 7409-VCL (Del. Ch. Oct. 19, 2012), Vice Chancellor J. Travis Laster ruled from the bench sua sponte that both parties must use predictive coding technology in lieu of “burning lots of hours with people reviewing.” Seeking to ensure an efficient review of the high volume of potentially relevant documents, the court noted that “[t]he problem is that these types of indemnification claims can generate a huge amount of documents.” Vice Chancellor Laster also required any party that did not want to use predictive coding to show cause as to why it was not the appropriate solution and ordered the parties to either come to agreement on a single e-discovery vendor or submit to his choice of vendor.

This is the latest judicial decision to comment on the use of predictive coding in civil litigation. Magistrate Judge Andrew Peck in the Southern District of New York had previously stated that technology-assisted review “is an available tool and should be seriously considered for use in large-data-volume cases where it may save the producing party (or both parties) significant amounts of legal fees in document review.” Da Silva Moore v. Publicis Groupe, No. 11 Civ. 1279, 2012 WL 607412 (S.D.N.Y. Feb. 24, 2012). However, in contrast to the order of the Delaware Chancery Court, Magistrate Judge Peck did not impose computer-assisted review on the parties, and stated that his order did not endorse a particular vendor or review technology.
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