As technology continues to improve and individuals and business continue to rely on it, we create more data that becomes time-consuming to review in traditional ways. Linear review of huge amounts of data is not always cost-effective or efficient. On the other hand, because of improving technology, there are increasingly new and better ways to conduct discovery. Before employing these newer discovery techniques and workflows, individuals and businesses will want to know whether these techniques will be upheld in court or if they will end up having to spend extra time and money conducting discovery.

The criteria that courts will look to in deciding if the workflow or discovery requests are defensible are under Rule 26(b)(1) of the Federal Rules of Civil Procedure (or related state rules). Rule 26(b)(1) states:

“Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”

Cost Benefit Analysis/Parties’ Resources/Amount in Controversy

If a party has limited resources, more efficient strategies for e-discovery are favored. The comments to Rule 26 state that “consideration of the parties’ resources does not foreclose discovery requests addressed to an impecunious party, nor justify unlimited discovery requests addressed to a wealthy party.” A parties’ deep pockets does not mean they must spend more money on discovery, nor do fewer assets mean a party does not have to comply with discovery requests.

If either party can develop and use a more efficient form of discovery that is still likely to produce the required information, courts and the writers of the Federal Rules of Civil Procedure encourage and look to the future of emerging technologies, expecting better forms of discovery. Special Counsel works to develop better workflows for each client according to their needs and new technology that is developing.

One court named ways for parties to defend their TAR workflows:

“it is very helpful to have the parties’ ediscovery vendors (or in-house IT personnel or in-house ediscovery counsel) present at court conferences where ESI issues are being discussed. It also is important for the vendors and/or knowledgeable counsel to be able to explain complicated ediscovery concepts in ways that make it easily understandable to judges who may not be tech-savvy.” Moore v. Publicis Groupe & MSL Grp. (S.D. N.Y., 2012).

If the efficiency and accuracy of a workflow can be adequately explained, parties and courts will be more likely to accept the alternative workflow.

Issues at Stake/Importance of the Discovery in Resolution/Access to Relevant Information

Monetary concerns are not the sole focus of defensibility of workflows. If your workflow is not likely to produce most of the relevant documents, the workflow will likely not be upheld. This could happen with the use of limited amounts of relevant keywords or large amounts of numerical data input in TAR programs. We have to work with vendors and understand the ways that technology and possible workflows will affect the production of relevant documents.

Additionally, the outcome of a litigation may be more ideological rather than monetary. In those cases, the cost of discovery may appear to outweigh the benefit because there is no large monetary return in terms of recoveries. However, public policy may be of more concern than the dollar amount involved, and courts may uphold workflows that may be expensive.

New workflows will not be blindly accepted because they have a more widely trusted name like “Technology Assisted Review.” Defensibility may require parties to provide their seed sets and explain their techniques to the opposing party or the court in order to be used and trusted to provide relevant documents. Other workflows may require work-product privileged documents from experts to be reviewed in greater detail to produce more factual documents while withholding more analytic documents. Because of the one party’s access to the information, the other party may be at a disadvantage if that type of workflow is not implemented.


Courts are most likely to accept use of emerging technology for discovery if the parties agree to it in their pre-trial meet and confer. If parties cannot agree, the court may step in and decide based on the scope of discovery rules applicable to their court. Defensibility of alternative workflows will depend on many factors, as discussed above, but will ultimately fall on whether the workflow will fulfill the purposes of the discovery rules: namely to “secure the just, speedy, and inexpensive” (Fed. R. Civ. P. 1) resolution of cases.

Candace Fry is a Managing Attorney for Special Counsel. Connect with Candace via LinkedIn or email today!