We read with interest the recent article suggesting that the use of technology-assisted review (TAR) to cull privileged documents from voluminous materials seized from an attorney’s office pursuant to a search warrant is “improper and potentially unconstitutional.” N.Y.L.J., Jan. 15, 2019, at 4. The article focuses on the Government’s seizure of documents from the office of Michael Cohen, who was then serving as President Trump’s personal attorney. We write to respond briefly to several points made by the authors that are inaccurate.
First, the authors assume that TAR would have been used to the exclusion of manual review and Cohen’s counsel would have had no input into the process we suggested. That is wrong. The TAR tool would have been used to identify potentially privileged documents, which would, of course, have been reviewed by humans, including the Special Master and Cohen’s counsel, who would have been given an opportunity to identify other documents in the production set for which Cohen claimed privilege.
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