The Sedona Conference TAR Case Law Primer

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The Sedona Conference TAR Case Law Primer
  T S C Ju ®  Volume 18 v  Summer 2017 The Sedona Conference TAR Case Law Primer The Sedona Conference Final / Prepublication Edition Cite as “18 Sedona Conf. J. __ (forthcoming 2017).” Copyright 2017 The Sedona Conference All Rights Reserved.  A  NTITRUST   L  AW  , C OMPLEX   L ITIGATION ,  AND  I NTELLECTUAL  P ROPERTY   R  IGHTS    T HE S EDONA C ONFERENCE TAR   C ASE L AW P RIMER *   A Project of The Sedona Conference Working Group on Electronic Document Retention and Production (WG1) Author: The Sedona Conference Editor-in-Chief: Maura R. Grossman Team Leaders: Lea Malani Bays Sandra Rampersaud Senior Contributing Editor: Gareth Evans Drafting Team Members: Abigail Dodd Maureen O’Neill  J. Michael Showalter Steering Committee Liaisons: Maura R. Grossman  Joseph P. Guglielmo  John J. Rosenthal  Judicial Observer: Hon. Andrew J. Peck The opinions expressed in this publication, unless otherwise attributed, represent consensus views of the members of The Se-dona Conference Working Group 1. They do not necessarily represent the views of any of the individual participants or their employers, clients, or any other organizations to which any of the participants belong, nor do they necessarily represent offi-cial positions of The Sedona Conference. We thank all of our Working Group Series Sustaining and Annual Sponsors, whose support is essential to our ability to develop Working Group Series publications. For a listing of our * Copyright 2017, The Sedona Conference. All Rights Reserved.  2   T HE S EDONA C ONFERENCE  J OURNAL   [Vol. 18 sponsors, just click on the “Sponsors” navigation bar on the homepage of our website.  2017] TAR CASE LAW PRIMER  3 P REFACE  Welcome to the Final Version of The Sedona Conference TAR Case Law Primer  , a project of The Sedona Conference Work-ing Group on Electronic Document Retention and Production (WG1). The Sedona Conference is a 501(c)(3) research and edu-cational institute that exists to allow leading jurists, lawyers, ex-perts, academics, and others, at the cutting edge of issues in the areas of antitrust law, complex litigation, and intellectual prop-erty rights, to come together in conferences and mini-think tanks called Working Groups to engage in true dialogue—not debate—in an effort to move the law forward in a reasoned and  just way. In just a few short years, the use of technology-assisted re-view (TAR) for the exploration and classification of large docu-ment collections in civil litigation has evolved from a theoretical possibility to an essential tool in the litigator’s toolbox. How-ever, its widespread application—and the realization of its po-tential benefits—has been impeded by uncertainty about its ac-ceptance by the courts as a legitimate alternative to costly, time-consuming manual review of documents in discovery. This Pri-mer  analyzes decisions from those courts that have been re-quired to opine on the efficacy of TAR in a variety of circum-stances and explores the evolution in the courts’ thinking from 2012 through the end of 2016. The Primer  is the product of more than a year of develop-ment and dialogue within WG1. It was srcinally conceived as a chapter of a larger Commentary on the use of TAR in civil lit-igation, but the rapid development of the case law, the volume of court decisions, and the importance of those decisions in shaping legal practice in real time required that an exposition of the case law be made available on a faster timetable than WG1’s usual dialogue and consensus-building process allowed. For
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