A remarkable new legal rule in the Commercial Division courts of New York will explicitly encourage greater use among litigants in discovery matters of machine learning and other forms of technology-assisted review (TAR).
The Commercial Division is the arm of the New York Supreme Court handling all large and complicated commercial cases in the state. Commercial Division Rule 11-e governs responses and objections to document requests. An addition to this rule, named subdivision (f), will come into effect on October 1, 2018, and in its key section states:
“The parties are encouraged to use the most efficient means to review documents, including electronically stored information (“ESI”), that is consistent with the parties’ disclosure obligations under Article 31 of the CPLR and proportional to the needs of the case. Such means may include technology-assisted review, including predictive coding, in appropriate cases. The parties are encouraged to confer, at the outset of discovery and as needed throughout the discovery period, about technology-assisted review mechanisms they intend to use in document review and production.”
The intent of the Commercial Division courts is to steer parties away from expensive and time-consuming manual review of ESI and toward a greater reliance on machine learning and predictive coding. This is in step with the growing knowledge in the legal community of the speed and efficiency with which cases may be disposed of – and the enormous reduction in costs – when discovery burdens are reduced by intelligent use of modern AI search analytics.
This latest support for machine learning is also of significance simply because of its location: A rich and populous state, New York is often a trendsetter in pioneering the legal practices and procedures. New York City’s role as a global financial center and as the nation’s commercial capital ensures that it generates an unusual volume of high-stakes and high-profile commercial litigation. Developments there are often of consequence and interest to litigators, courts and scholars across the country.
As our world increasingly shifts to electronic means of documentation and communication, and with counsel required to make efforts to ensure their clients can produce and access such electronically stored information as soon as it is required, eDiscovery has become a crucial focus of contemporary legal matters.
The amount of ESI that accumulates in daily life – and the amount therefore that must be examined and dealt with during legal disputes – is enormous and growing every year. Luckily, though, there are state-of-the-art solutions now available in the eDiscovery market to cope with this deluge of data.