Extract from Mike Hamilton’s article “TAR: Use it at the Beginning of E-Discovery or Potentially Lose it”
Both sides must agree to entering into a TAR protocol. In In re Allergan Biocell Textured Breast Implant Products Liability Litigation (D.N.J. Oct. 25, 2022), asking for a change in review methodology in the middle of the review process was unacceptable, since both sides weren’t in agreement.
In this case, the defendants proposed to the court to use technology assisted review (TAR) to review and produce documents. The plaintiffs argued against the use of TAR.
In defense of using TAR, the defendants argued the following:
- TAR is “standard practice and commonly used to promote efficiency and reduce costs.”
- They were in the best position to determine the right review method based on the number of documents remaining for review (560,000 documents), which would take around 20 weeks to complete via a manual review method
The plaintiffs requested that the defendants either proceed with the review using search terms and linear review (which had already been used in review) or use TAR for the entire review. To support this stance the plaintiffs argued:
- Using TAR for the entire review would “increase the accuracy of the review”
- Using TAR after applying search terms would be prejudicial because “it will exclude documents from review and reduce the ‘efficiency and accuracy’ of the review process.”