This time last year, technology-assisted review (TAR) was emerging as the most talked about ediscovery topic in 2012. However, absent a few Ediscovery innovators and mavericks, most members of the legal community—from both the bar and the bench—remained at an impasse with regard to actually using this ground-breaking technology: the judiciary was waiting for counsel to bring TAR before them; counsel was waiting for the judiciary to “bless” TAR (or for their clients to direct its use); and clients were waiting for counsel to green light its use.
What a difference a year makes.
Silence was finally broken in Da Silva Moore v. Publicis Groupe, where U.S Magistrate Judge Andrew Peck approved the use of technology-assisted review in appropriate circumstances. Subsequent opinions, such as Global Aerospace v. Landow Aviation and In re Actos (Pioglitazone) Products Liability Litigation, similarly approved of TAR for complex cases with high data volumes and sufficiently detailed search processes. Moreover, in EORHB, Inc. v. HOA Holdings, a Delaware Chancery Court even directed parties to leverage TAR, requiring them to show the court why TAR would not be appropriate for the pending litigation. These opinions seemingly represented the requisite “blessing” and opened the floodgates for widespread adoption of TAR.
Caution About Using Technology-assisted review?
Despite the science and evidence substantiating the benefits of TAR, many practitioners, while acknowledging TAR’s perceived value, are proceeding with caution due to lingering concerns about costs, accuracy, and defensibility of process. Nonetheless, the rate of adoption and desire to learn about and understand TAR has steadily increased, paving the way for TAR to become the standard in appropriate cases. Simply put, TAR has emerged as a valuable offering that isn’t going away anytime soon.
In order for TAR to be maximized and reach its full potential, the “concerns” expressed about TAR must be exposed for what they truly are: myths. These myths obscure ongoing debate, and they must be debunked before TAR is fully adopted.
Join us for the next installation in this series as we dive into the most common myths associated with TAR in part two of this three-part series.