New NY Commercial Division E-Discovery Rule Encourages Use of Technology-Assisted Review

 

Guest Commentary

By Elizabeth M. Sacksteder and Ross M. Gotler, Paul, Weiss, Rifkind, Wharton & Garrison LLP. Ms. Sacksteder is a Partner with the firm and a member of the Commercial Division Advisory Council. Mr. Gotler is E-Discovery Counsel with the firm. Some of this material first appeared in Law 360.

The most expensive stage of big-ticket litigation today is review of the huge volume of electronically-stored information (ESI) that such cases typically require, notwithstanding such common economies as the use of vendors to do first-level document review. Achieving greater efficiency in this resource-intensive stage of litigation—making review of ESI cheaper, faster, and more accurate—is a shared goal of litigants, their counsel, and the courts. Sophisticated litigants know that the use of technology-assisted review can yield substantial cost savings as well as streamline and accelerate document review and production.

Though the e-discovery industry is embracing technology, neither the Federal Rules of Civil Procedure nor state procedure codes address whether, in what circumstances, or how a party may use technology-assisted review to fulfill its disclosure obligations. Other than references in a few discovery pilot programs, a relatively sparse body of mostly federal case law, and secondary sources such as the commentaries of The Sedona Conference, there has been little express guidance to date for practitioners or courts concerning the appropriate use of technology-assisted review. Continue reading “New NY Commercial Division E-Discovery Rule Encourages Use of Technology-Assisted Review”