Leveling the Field: Playing Technology-Assisted Review by the [Federal] Rules

Abstract

The Federal Rules of Civil Procedure, though adept at policing attorney misconduct and discovery failures, have struggled for decades to manage the deluge of potentially discoverable electronic information brought on by the Information Age. The volume of data has threatened to bury the liberal discovery regime in delays and costs. The development of technology-assisted review (“TAR”) promises to help solve this problem by enabling parties to locate relevant documents more accurately and at lower cost than traditional human review. Despite this proven advantage, many courts have deterred adoption of TAR by imposing heightened disclosure requirements on parties who seek to use it. This Article argues that such heightened disclosure is unnecessary and counterproductive. Concerns about TAR are, at bottom, concerns about the attorneys using it — and concerns about attorney misconduct are nothing new. The discovery procedures in the existing Rules are therefore well-equipped to handle TAR productions, and preemptive, elevated disclosure requirements are an ill-advised deviation from the procedures established by the Rules. Rather than discouraging use of this promising new technology by requiring preemptive disclosure, courts should embrace the unique opportunities TAR presents and address any associated discovery abuses using time-tested discovery rules.

Keywords: technology-assisted review, TAR, predictive coding, FRCP, discovery, ediscovery, misconduct, Information Age, disclosure, privacy, cooperation, transparency, scope, discoverable, sanctions, computer-assisted review, delays, costs, gamesmanship