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Where a producing party wants to utilize Technology Assisted Review for document review, courts will permit it.
Plaintiff Rio Tinto (Plaintiff) and Defendant Vale S.A. (Defendant) wrote jointly to provide the Court with a revised proposed Predictive Coding Protocol. Pursuant to the Court's February 6, 2015 Order, the parties have continued to meet and confer with respect to certain suggested revisions to the proposed protocol and believe that we have resolved the Court's concerns with respect to various aspects of the protocol. The Plaintiff and the Defendant Vale eventually agreed to the use of predictive coding for the search, review, and production of documents in this Action and to enter a stipulation to memorialize their agreement
Was the use of Predictive Coding or Technology Assisted Review permissible?
In this case the Court strongly affirmed that predictive coding is no longer an “unproven technology”, stating: "In the three years since the Da Silva Moore ruling, the case law has developed to the point that it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it." Computer-assisted review is an available tool and should be seriously considered for use in large-data-volume cases where it may save the producing party (or both parties) significant amounts of legal fees in document review. Counsel no longer has to worry about being the "first" or "guinea pig" for judicial acceptance of computer-assisted review. As with keywords or any other technological solution to eDiscovery, counsel must design an appropriate process, including use of available technology, with appropriate quality control testing, to review and produce relevant electronically stored information while adhering to Fed. R. Civ. P. 1 and Fed. R. Civ. P. 26(b)(2)(C) proportionality. Computer-assisted review now can be considered judicially-approved for use in appropriate cases.