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Technology Assisted Review – Score Another Win for Freedom of Choice

In a blog post last year, “Predictive Coding and Freedom of Choice: Sedona Principle 6 in Action,” we examined two cases in which one party sought to force another party to use predictive coding technology to identify and produce documents in discovery. In each case, the court refused to order the producing party to use technology assisted review (“TAR”), finding instead that the litigant was entitled to use the reasonable, defensible methodology of its choice. In a recent decision from West Virginia, the court again adopted this freedom-of-choice approach.

In Good v. American Water Works Co., No. 2:14-01374 (S.D. West Va. Oct. 29, 2014), the parties’ dispute over the use of TAR arose as they attempted to negotiate a stipulated protective order under Federal Rule of Evidence 502(d). The parties both agreed to a protective order which provided that no inadvertent production of privileged material would be deemed a waiver of privilege, and all inadvertently produced documents could be “clawed back.” But according to plaintiffs, the defendants should be limited to using a predictive coding tool to screen documents for privilege before production, and no manual human review of documents should take place. Defendants, however, wished to reserve the right to perform some manual review of documents, even if they also relied on predictive coding or other TAR tools to help identify privileged content.

The court agreed with defendants. Rejecting plaintiffs’ argument that manual review would slow down the pace of production, the court found that defendants were “ready to move expeditiously in producing documents.” The court accepted defendants’ assurance that they “have every reason to implement efficient review techniques and avoid the high costs of manual privilege review for all but the most sensitive document categories.” Although defendants’ approach may have been “cautious,” the court found that their reservation of the right to conduct some manual review was reasonable and in good faith.

DiscoverReady Technology Assisted Review and Predictive Coding

DiscoverReady wholly supports this freedom of choice. While we encourage our clients to consider predictive coding and other technology assisted review tools to streamline document review, those technologies are not appropriate for every case. And especially with respect to privilege review, some clients still prefer an approach that includes some degree of manual, “eyes-on” review by attorneys. We help our clients identify the right combination of methodologies for their matter, and then develop a reasonable, defensible process to implement them. We believe that’s discovery done better.

Maureen O'Neill