New automated technologies offer an alluring hope that the expensive and complicated duty to preserve and review electronically stored information (ESI) will be mitigated. But how effective are these technology-assisted reviews (TAR), and do they satisfy the Federal Rules of Civil Procedure governing discovery?
When litigation is reasonably anticipated, relevant ESI must be identified and preserved, and when litigation is pending, it must be reviewed for relevance and privilege. This process (especially during litigation) can consume costly attorney review time.
Some courts have indicated their support for the use of TAR, provided certain safeguards are included in the document review process. For example, a recent judicial decision in the Southern District of New York validated the use of predictive coding, but noted that the most important issue was the use of an appropriately-tailored review process. See Da Silva Moore v. Publicis Groupe, 2012 U.S. Dist. Lexis 23350, at *3, 40 (S.D.N.Y. Feb. 24, 2012) (“computer-assisted review is an acceptable way to search for relevant ESI in appropriate cases,” but “counsel must design an appropriate process”).
New technologies may also assist with data preservation. For example, some companies routinely “index” their entire universe of ESI as a prophylactic measure even before litigation is anticipated. This is supposed to allow for responsive documents to be easily identified—similar to when a “Windows Search” is performed on a computer running Windows. Some indexing software allow for searches of backed up files, and some are intended to enable a party to “crawl” through active data. ESI that is identified from indexes can then be locked down “in place” or transferred to secure locations. This process of indexing the entire universe of ESI is expensive, however, and commentators have noted that the capabilities of indexing software are largely unproven. As a result, the sufficiency of the preservation process subsequently may be challenged, potentially leaving the party at risk for a claim of spoliation.