This is an insightful piece here on the McGuire Woods website. Interestingly we had a very similar issue come up recently. The key of course is for the parties to work together and come to an agreement. Often that step involves assisting the adverse party with “seeing the light” and realising the advantages which are applicable to both sides (i.e., fewer documents produced, often means fewer documents for the opposing parties to sort through).

I was chatting to my colleague Kevin Negangard about this, and we agreed it is pretty similar to TAR, which seems to be crawling its way into an increasing number of ESI protocols.

We think that other technologies used to help increase the efficiency of document reviews, such as the use of email threading, should be addressed in an ESI protocol. Often, both parties can realise the potential benefits associated with the technologies, however the upfront agreement between parties, as always, remains crucial.