Technology-assisted review, or TAR, is undoubtedly gaining traction in e-discovery practice in complex civil litigations and regulatory investigations. However, practitioners and judges still grapple with inconsistencies and unresolved issues regarding its use and applicability, in no small part due to a shortage of legal opinions on the topic and a lack of consistency in the decisions that do exist.

In an effort to restate the current law on TAR, The Sedona Conference, a leading think tank on ediscovery law and practice, recently released its TAR Case Law Primer. This Primer does not propose TAR best practices or endorse specific TAR methodologies; instead, it “analyzes decisions from those courts that have been required to opine on the efficacy of TAR in a variety of circumstances and explores the evolution in the courts' thinking[.]” While TAR can be used as an umbrella term to describe many types of advanced technology tools and processes used to aid in the document review process (such as email threading, concept searching, and automated clustering), the Primer uses it as a synonym for what is also called predictive coding. The Primer defines TAR as a “ process for prioritizing or coding a collection of Electronically Stored Information using a computerized system that harnesses human judgments of subject matter expert(s) on a smaller set of documents and then extrapolates those judgments to the remaining documents in the collection.”

In a recent decision, a court turned to the Primer for guidance in resolving a dispute that, ideally, the parties should have resolved on their own. The court, though, with an opportunity to move the law on TAR forward and bring some clarity on a key issue, may have muddied the waters even more.