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Field-Based Intelligence

By David Deppe
November 02, 2015

Has acceptance of technology-assisted review (TAR) finally turned a corner and earned broad acceptance in the legal community? Some recent comments by the influential and technology-savvy Magistrate Judge Andrew Peck, published in a March 2015 decision would seem to indicate that TAR has moved beyond the controversial stage and entered into the mainstream of e-discovery practice. See, Rio Tinto PLC v. Vale S.A., et al., No. 14 Civ. 3042, U.S. District Court, SDNY (March 2, 2015) ().

Culling Before TAR

“In the three years since da Silva Moore,” writes Judge Peck, “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.” Id., referencing Da Silva Moore v. Publicis Groupe, 2012 U.S. Dist. LEXIS 23350 at 19 (S.D.N.Y. Feb. 24, 2012). Judge Peck points out, however, that courts have not generally approved of requesting parties trying to force producing parties to use TAR, and he also notes there are still “open” issues related to use of the technology ' most notably the degree to which parties need to be transparent and cooperative with regard to selection of seed sets used to “train” the TAR system to identify evidence likely to be responsive.

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