Courts are Testing and Accepting Technology-Assisted Review

Technology-Assisted Review (TAR) promises to reduce the time and money it takes to produce responsive materials, using a blend of attorney analysis and computer intelligence. Through the TAR process, experienced attorneys use classifiers to train a computer system to sort millions of documents, eliminating the costly process of physically analyzing each document.

Opponents of the technology note that it replaces attorneys, thus raising questions about defensibility. The author notes that there will always be a role for skilled attorney analysis to guide the technology, and perhaps a new role for attorneys who have a keen understanding of statistics and linguistics.

Four pending cases that address critical issues concerning TAR are summarized. In Da Silva Moore v. Publicis Groupe, an employment discrimination case from the Southern District of New York, Judge Andrew Peck explored the defensibility of technology assisted review. The issue in this case was not whether, but rather how TAR should be used. At a status conference in February of this year, the parties disagreed about various aspects of the methodology by which they would conduct technology assisted review of a large amount of ESI.

In response, Judge Peck reminded them that TAR “works better than most of the alternatives, if not all of the [present] alternatives. So the idea is not to make this perfect, it’s not going to be perfect. The idea is to make it significantly better than the alternatives without nearly as much cost.”