Historical ESI Highlights – Part V – Technology Assisted Review

The Hon. Andrew Peck wrote that “[t]he first ‘technological’ innovation in document review came in 1980- when 3M® began selling Post-It Notes.”[1]  Two of Judge Peck’s later decisions led to the recognition of technology assisted review as a valid search methodology.

In A Brief History of Technology Assisted Review (lawtechnologytoday.org)(Nov. 17, 2015), Thomas C. Gricks, III, and Robert J. Ambrogi discuss the historical development of technology assisted review (“TAR”).

Mr. Gricks and Mr. Ambrogi note that one of the earliest articles on TAR was by Anne Kershaw, “Automated Document Review Proves its Reliability” (2005).

Then, in 2006, the National Institute of Standards and Technology launched the “TREC Legal Track” to study search and information retrieval.  Id.   And, a 2007 Sedona Conference publication referenced “machine assisted review.”  Id.

Later, a 2010 publication challenged the concept that human review is the gold standard.  Id.  It was followed by a study by Maura Grossman and Gordon Cormack.  Ms. Grossman and Prof. Cormack published an article showing that technology-assisted review could be more effective and less expensive than human review. Id.[2]

This was followed by two decisions from Judge Peck, Da Silva Moore v. Publicis Groupe 287 F.R.D. 182 (S.D.N.Y. 2012), and Rio Tinto PLC v. Vale S.A., 306 F.R.D. 125, 127 (S.D.N.Y. 2015).

Judge Peck held that “it is now black letter law that where the producing party wants to utilize [technology assisted review] for document review, courts will permit it.”

History is important.

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[1] Foreword by Judge Peck in J. Baron, R. Losey, and M. Berman, eds., “Perspectives on Predictive Coding” (ABA 2016), v.

[2] See also, David C. Blair & M. E. Maron, “An evaluation of retrieval effectiveness for a full-text document-retrieval system | Communications of the ACM (1985), and Michael Simon, “Blair and Maron Must Die!,” (Logikcull June 28-29, 2017)(arguing that Blair and Maron is obsolete).