In the first article in this series, we assessed several methods of technology assisted review of documents in civil litigation and discussed when they should be considered for use. In this article, we explain how to work with opposing counsel to achieve a positive result that your court will accept. In the third and final article in this series next month, we will explore the best way to make technology assisted review a cost-efficient process.
While no lawyer or company should jump into technology assisted review (TAR) of electronic data without first conducting a comprehensive assessment of the case, once the decision has been made to use it, the challenge becomes working with opposing counsel to ensure that the forum court accepts the results and that discovery motions practice is minimized. The best way to effectively use TAR is to confer with your opponent early in the case and make sure he or she understands the nature and cost of TAR. The earlier you express proportionality concerns and come to at least nominal agreement on what is truly at issue in the case, the better equipped you will be to successfully use TAR in civil litigation.