With all the recent focus, it is not surprising that parties to litigation are including technology assisted review (TAR) provisions in protocols governing the production of electronically stored information (ESI). Parties are beginning to allow for at least the possibility of using TAR, even if only to supplement a traditional linear review. These protocols vary in detail, and some require the parties to collaborate together to develop the TAR process. As this technology’s reliability improves, litigants and courts may become more comfortable allowing TAR to have a larger role in identifying responsive documents in litigation.

TAR is a relatively recent development in the legal software industry that is used to prioritize or code documents based on seed sets coded by humans by extrapolating the human judgments to the remaining document collection using sophisticated algorithms or systematic rules. TAR can be used for culling documents or can be used in combination with search terms for prioritizing review. TAR can be used to respond to requests for production in litigation, or in response to government or internal investigations. Despite the fact that TAR can be a useful and effective tool, it may not be a good fit in every litigation or investigation. Practical concerns may weigh in favor of sticking with more traditional methods for culling and reviewing data. This article discusses in general terms some of those concerns, and provides some thoughts to consider when deciding whether to use TAR in your next litigation.

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