Attorneys across the country use technology assisted review (“TAR”) to streamline and manage document review, which is the most time consuming aspect of litigation because of the high volume of data that organizations generate daily. TAR cuts down on this task by quickly and efficiently reviewing, organizing, and coding documents. Advanced TAR programs can even be taught to recognize concepts, which renders this method more accurate than manual review. Commonly used TAR solutions include email threading, keyword searches, and predictive coding.

Both U.S. and foreign courts have approved and endorsed the use of TAR solutions to help with discovery review. However, there are barely any rules or laws that explicitly address this subject. On July 19, 2018, the New York Commercial Division court system approved the following rule, which will go into effect on October 1, 2018 as part of the Commercial Division Rules of Practice:

The parties are encouraged to use the most efficient means to review documents, including electronically stored information (“ESI”), that is consistent with the parties’ disclosure obligations under Article 31 of the CPLR and proportional to the needs of the case. Such means may include technology-assisted review, including predictive coding, in appropriate cases. The parties are encouraged to confer, at the outset of discovery and as needed throughout the discovery period, about technology-assisted review mechanisms they intend to use in document review and production.

Below are some important takeaways from the new rule:

• It shows that the court favors new and emerging technology. While this rule does not make it mandatory for litigators to use TAR, it definitely supports this technology. This means that judges will likely encourage attorneys to use TAR software if attorneys do not opt to do so on their own.
• It points out the need for proportionality. Because it requires some up front costs and time commitment, TAR is most beneficial with larger review projects. Manual review or simple computer searches are generally more ideal for analyzing very small data sets. However, in the data-filled world that we live in most lawsuits yield massive amounts of documents for review which would make TAR the preferential mechanism.
• It promotes cooperation between the parties. As with most discovery matters, attorneys are initially expected to discuss review methods outside of the court. This helps avoid disputes and minimizes the need for court intervention on otherwise trivial matters.

Why Should Other Courts Follow Suit?

It would be beneficial to see more rules like this in other state courts and at the federal level. Doing so would put litigators on the same page across the country and positively impact the legal profession in the following ways:

• There will be less disputes about what review methods are acceptable. Even though attorneys have been using TAR for years and courts have supported this technology when it has been challenged, having rules that explicitly authorize and encourage TAR should diminish the number of challenges. This would not foreclose an opposing counsel’s right to raise discovery challenges.
• Using TAR streamlines cases. The ability to review data faster and more efficiently saves parties and the court system time and money, which is always preferred across the board. Enacting rules that authorize and support TAR solutions promote these benefits.
• It would show that courts embrace and can accommodate new technology. Creating these rules brings court systems current with the times and shows that courts endorse the use of technology that makes litigation practice more efficient. Because of the overwhelming benefits from TAR, manual review will be used only sparingly in the future.