In this article, John Eustice discusses the use of technology assisted review (TAR) to review potentially privileged material. "When a large-scale litigation or investigation begins at your company, managing the collection of electronic information becomes an issue of both strategic legal importance and cost management," Eustice said. "Increasingly, [TAR] -- also referred to as predictive coding or computer-assisted review -- provides the best way to work strategically and efficiently in the gathering, reviewing, and production of relevant electronic data." Eustice provides background on when and how it is appropriate to use TAR in reviewing privileged material, how to ensure that it works and how to protect against waiver. "Recent precedent suggests that acting in good faith in your use of TAR will allow you to position yourself well before a court. So long as you keep your opposition informed and you adequately explain the reasonable nature of the process to the court or agency, you should be able to use TAR for privilege review," he said.
This article was also published in New Jersey Law Journal with the title, "Evaluating TAR: Can We Trust Technology," on October 13, 2015.