Technology-Assisted Review: Changing the Discovery Game, Not the Discovery 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 swallow the liberal discovery regime in delays and costs. The development of technology-assisted review (“TAR”) promises to help parties locate relevant documents more accurately and at lower cost than traditional human review. Despite garnering judicial approval, many courts have deterred TAR usage by imposing heightened disclosure requirements on parties who seek to use the technology. This Article argues that the discovery procedures in the existing Rules are well-equipped to handle TAR productions, and that preemptive, elevated disclosure requirements are an ill-advised deviation from the procedures established by the Rules. Rather than requiring preemptive disclosure, courts should encourage the unique opportunities TAR presents to effectively cooperate without sacrificing client privacy.