When a large-scale litigation or investigation begins at your company, managing the collection of electronic information becomes an issue of both strategic legal importance and cost management. Increasingly, technology assisted review (“TAR”) – also referred to as predictive coding or computer-assisted review – provides the best way to work strategically and efficiently in the gathering, reviewing, and production of relevant electronic data. Recent judicial decisions reveal that resistance to the use of TAR in litigation is vanishing. See, e.g., Rio Tinto PLC v. Vale S.A., 306 F.R.D. 125, 127 (S.D.N.Y. 2015) (noting that “the case law has developed to the point that it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it”); Dynamo Holdings Ltd. P'ship v. Comm'r of Internal Revenue, Nos. 2685-11, 8393-12, 143 T.C. 183, 192 (T.C. 2014) (recognizing that “predictive coding [is] widely accepted for limiting e-discovery to relevant documents and effecting discovery of ESI without an undue burden”). One area of concern, however, lies with the identification and withholding of privileged information.

Should You Use TAR for Privilege Review?

Deciding whether to manage a privilege review of potentially relevant electronic documents via TAR, as opposed to manual attorney review, requires consideration of several factors. First, the complexity of the privilege designations informs the decision. If a matter involves multiple layers of privilege across relevant material that cannot be flagged by attorney name or time periods, a manual review may be necessary. Second, the sensitivity of the potentially privileged communications should be considered. There may be categories of privileged information that a company maintains must not be inadvertently produced. If so, that category should be identified, separated, and subject to attorney review. Third, always remember that volume matters. The more potentially privileged documents involved, the more time and money will be saved through the use of TAR. If the volume is high, then TAR should be considered to cull down the documents, even if certain categories are held back for manual review.