Predictive coding, also referred to as technology-assisted review (TAR), has been surrounded by an air of mystery since its inception. As a result, legal counsel and their clients continue to struggle with determining its reliability and accuracy as a method of document review.

Review, typically a task handed off to young associates or contract attorneys, is a critical and costly element of legal matters. One way to significantly limit the cost of review is predictive coding.

Yet, the question remains: Is TAR safe to use for Privilege Review?

Reliance on predictive coding can be a tricky issue, and it can be especially complex when dealing with privilege review. John C. Eustice explains in his article “Evaluating TAR: Can We Trust Technology? : Using TAR to Review Potentially Privileged Material” that choosing to conduct privilege review with TAR demands consideration of the following issues:

Complexity: If the matter contains documents with multiple layers of privilege, manual review may be necessary in that case.
Sensitivity: If a company has decided that certain “categories of privileged information” must not be “inadvertently produced,” manual review may be required for those categories.
Volume: If the volume of potentially privileged documents is high, the cost of TAR could be significantly lower than that of manual review, and TAR should be used to cull the number of documents needing review.

Eustice also maintains that “TAR does not require you to be an expert in the technology.” However, he suggests that those involved in legal matters do need to have working knowledge of the process so that they can “feel comfortable explaining it to both [their] adversary and to the courts or agency.” He also notes that it is imperative that attorneys protect against a privilege waiver with a Federal Rule of Evidence 502(d) order or its state order equivalent.

Even with full disclosure of the process and the above-listed considerations, TAR can be challenging for all phases of review, especially Privilege Review. And so, one has to be diligent in maintaining transparency by keeping opposition informed and notifying all parties of the intent to use TAR at the onset of the legal matter and discovery.

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