May 3, 2012
There are generally three ways to conduct a document review:
• Traditional, linear “eyeballs on every document” review,
• Production without reviewing any documents,or
• Use of technology to help facilitate the review.
The traditional, and most common, method involves human reviewers manually coding documents for relevancy. Because the reviewers typically code large sets of documents in serial fashion, linear review can be costly, often up to 70% of the total cost of litigation, and time consuming.
Producing without reviewing any documents is rare – typically appropriate when there are equal sized parties on both sides and when the document population is unlikely to contain much, if any, privileged or confidential documents. Make sure you have an ironclad clawback agreement in place!
Technology-assisted review (“TAR”) generally refers to a set of tools and techniques that assists in either speeding up a more traditional linear review, or through the use of specialized software, assists in the auto-categorization of un-reviewed documents in lieu of human review of those documents.
While the benefits of TAR have been around for several years, the risk-averse legal marketplace has been slow to adopt the technology mainly because of confusion over how to implement it and the lack of judicial acceptance (see, e.g.,Monique Da Silva Moore v. Publicis Groupe & MSL Group (No. 11-cv-01279, S.D.N.Y. Feb. 24, 2012)).
To help navigate this area that some continue to see as confusing, this Top Ten provides the key considerations for in-house counsel when evaluating TAR technology, particularly in light of the recent Da Silva opinion.
1. The Volume of Data Potentially Available for Future Litigation Is Growing at Exponential Levels
Market intelligence firm IDC says that the amount of digital data will grow by 48% in 2012 alone and projects that most companies will be dealing with 50 times the amount of data in 2020 than they had in 2011. It is soon likely the amount of ESI in cases will either take too long or be too expensive for a purely linear review. Indeed, the proportionality requirements of FRCP 26(b)(2)(C) may at some point be found to require parties to use some form of TAR to ensure a just, speedy and inexpensive-discovery process.
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