The December 1, 2015 amendments to the Federal Rules of Civil Procedure and robust new technology have ushered in a new age for attorneys to benefit from artificial intelligence in the ediscovery practice. No longer should practicing attorneys be required to always explain and justify the use of technology-assisted review (TAR) methodologies to courts, but instead courts should measure practitioners’ discovery conduct by the time-tested dictates of proportionality and reasonableness.
This new age threatens some in the ediscovery space who have made their living consulting about the less-understood nuances of TAR. They are worried because they feel that newer TAR technology is a black box that can’t be explained to a judge. However, in truth, the discovery process from the court’s and the requesting party’s perspective in most cases has always been a “black box,” even well before the days of ediscovery. Before the advent of ediscovery, the process of collection, review, analysis, and production was done in paper form (and I’m old enough to remember those days). Courts did not usually interfere with the means or methods by which a producing party went about its discovery obligations, so long as the party complied with the Rules: the document production was timely, reasonably responsive to the requests, and was organized in a fashion allowed by the Rules (e.g. by individual request, or as kept in the usual course of business). There was little or nothing the producing party needed to explain to the court, unless the producing party ran afoul of the Rules.