27 April 2012 – 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.
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