Defending the Use of Analytical Software in Civil Discovery, Article in BNA by Conor R. Crowley, Esq.
In complex litigation where the population of documents to be reviewed may consist of millions or even tens of millions of unique documents, subjecting each document to individual manual review is neither reasonable nor consistent with Fed. R. Civ. P. 1, which directs that the Rules be ‘‘construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.’’ In such circumstances, first-pass review is most effectively performed using analytical software tools that leverage lawyers’ knowledge of the issues in the case to make accurate, testable relevancy determinations. The use of such tools is also consistent with the proportionality considerations set forth in the Federal Rules of Civil Procedure, allowing for a reduction in costs through the appropriate application of human versus software review in a given case.2 Indeed, the use of analytical software tools to reduce the costs of discovery may, in complex litigation, be the only way to ensure that parties fulfill their production obligations in a manner that satisfies the proportionality considerations set forth in the Federal Rules.
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