In a recent article in the New York Law Journal, Robert W. Trenchard and Steven Berrent examine an important question facing litigants in discovery: If the litigant decides to rely on “novel” methods of document review involving advanced analytics or predictive coding technologies, must they disclose those methods to the opposing party? The authors present several compelling arguments in favor of candid, transparent disclosures around document review methodology, including:
- Savings of time and expense – and increases in efficiency – of the discovery process
- Reduction in the frequency and scope of discovery motion practice
- Establishing the reasonableness of steps taken to prevent inadvertent disclosure of privileged information, which is a pre-condition to using the non-waiver protections of Federal Rule of Evidence 502
On the other hand, the authors also note equally persuasive reasons NOT to disclose certain aspects of the methods used to review documents:
- Protection of attorney work product, including significant mental impressions about the litigation strategy
- Protection of attorney-client privileged communications
- Protection of confidential and/or proprietary information such as trade secrets and sensitive competitive data
Document Review Disclosure
In the end, litigation counsel must make strategic decisions about the extent to which its client will disclose document review and other discovery methods to the other side. In their article, Trenchant and Berrent offer several ideas for balancing these competing concerns and arriving at a workable strategy for disclosure.
Regardless of the approach counsel ultimately decides to take, litigants must position themselves early in the discovery process in a way that makes the appropriate disclosures possible. In particular, when working with discovery service providers to establish and implement a document review methodology, each step of the process must be well documented. Counsel must thoroughly understand and be prepared to articulate to the opposing party the technologies used in the document review – technologies that often are highly sophisticated and not easy to grasp at first glance. At DiscoverReady, we strive to establish that partnership with our clients and their counsel at the outset of every discovery matter. We are transparent about everything we do, so our clients – if they choose to do so – can be transparent with their adversaries.