Very recently, I wrote an article about two of the biggest e-discovery developments we are likely to see in the upcoming year, namely, the proposed amendments to the Federal Rules of Civil Procedure on e-discovery, and greater attention to Information Governance and the "data explosion." (See the ABA's Law Practice Magazine, here)
But a third serious contender for the title of "Top e-Discovery Trends in 2015" is the growing comfort level with technology assisted review (also known as "TAR" or predictive coding).
TAR may have just taken a big step forward in that race, in Rio Tinto PLC v. Vale S.A., 2015 WL 872294, No. 14 Civ 3042 (S.D.N.Y. March 2, 2015), thanks to United States Magistrate Judge Andrew J. Peck, who also authored one of the first major TAR-related opinions in Da Silva Moore v. Publicis Groupe & MSL Grp., 287 F.R.D. 182 (S.D.N.Y. 2012).
Interestingly, in Rio Tinto, there was no apparent dispute about whether TAR or predictive coding should be used in that case. Both parties apparently decided to use it and submitted for the Court's approval a joint stipulation and protocol for using TAR. However, rather than simply signing off on the stipulation, Judge Peck took the opportunity to summarize the current status of US jurisprudence on TAR, the importance of the parties' cooperation and transparency in the process, the significant remaining legal issues (primarily exchanging seed sets), and potential ways to resolve those issues, on his way towards approving the proposed protocol that was set out in the companion Order.
In summarizing and attempting to resolve these issues, Rio Tinto almost reads like a law review article or commentary on the status of TAR in today's legal system, while at the same time providing additional judicial support and precedent for the process. The opinion reiterates that "courts leave it to the parties to decide how best to respond to discovery requests" and that courts are "not normally in the business of dictating to parties the process that they should use." Nevertheless, this opinion will likely be cited often in the future and should serve its apparently intended purpose of getting litigants, attorneys and courts to (a) feel more comfortable in using TAR in the appropriate cases and (b) addressing the various issues involved in the process.
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