A Few Final Cases of Note, Technology-Assisted Review Series Part 13

Seven years after it first rose to prominence in eDiscovery, technology-assisted review remains an important, and at times controversial, tool in the eDiscovery practitioner’s toolkit

In “Still Crazy after All These Years,” we discussed the slow but steady growth in the importance of TAR.  In “In the Beginning Was da Silva Moore,” we discussed the first case to address TAR.  In “Questions of Choice in Kleen Products,” we discussed an attempt to force the use of TAR, and in “Reported Results in Global Aerospace,” we discussed the first instance of reported TAR results.  In “A Negotiated Protocol in In Re: Actos,” we discussed a successfully negotiated TAR protocol.  In “At a Judge’s Direction in EORHB,” we discussed a Judge ordering TAR use unprompted.  In “Debating Process and Transparency in Biomet,” we discussed questions of process and transparency.  In “Changing Horses Midstream in Progressive and Bridgestone,” we discussed trying to switch to a TAR approach after agreeing to a traditional one.  In “Seeking Approval and Perfection in Dynamo,” we reviewed the questions of whether to seek prior approval and how good is good enough.  In “Bringing it Full Circle in Rio Tinto,” we discussed Judge Peck’s second prominent TAR case, and in “Trying to Compel TAR Use in Hyles,” we discussed his third and final.  In “Addressing Process Adequacy and Transparency in Winfield,” we discussed last year’s most prominent decision.  In this penultimate Part, we review a few final cases of note.

Before we conclude our survey of technology-assisted review cases, there are a handful of additional cases worth noting that did not warrant full posts of their own.  Specifically, there are three more early cases, three more recent cases, and five international cases worth noting.

Three More Early Cases

1. National Day Laborer Organizing Network v. U.S. Immigration and Customs Enforcement Agency, 877 F. Supp. 2d 87 (S.D.N.Y. Jul. 13, 2012) – This was one of the first cases after da Silva Moore to address the topic of TAR, and it also did so positively:

. . . parties can (and frequently should) rely on latent semantic indexing, statistical probability models, and machine learning tools to find responsive documents. Through iterative learning, these methods (known as ‘computer-assisted’ or ‘predictive’ coding) allow humans to teach computers what documents are and are not responsive to a particular FOIA or discovery request and they can significantly increase the effectiveness and efficiency of searches.  [footnote omitted, emphasis added]

2. Harris v. Subcontracting Concepts, LLC, Case No. 1:12-MC-82 (N.D.N.Y. Mar. 11, 2013) – This case was the first to raise the availability of TAR solutions as a factor in assessing a burden argument during discovery:

. . . I certainly know that the amount of time, cost, and effort expended to produce these records from the computer is significantly less than by hand. With the advent of software, predictive coding, spreadsheets, and similar advances, the time and cost to produce large reams of documents can be dramatically reduced.  [emphasis added]

3. Independent Living Center of Southern California, et al. v. City of Los Angeles, et al., No. 2:12-cv-00551 (C.D. Cal. Jun. 26, 2014) – In this interesting case, the Court ordered the use of TAR by the Defendant to expedite voluminous discovery that had overrun the original schedule and been plagued by disputes over search terms. The Court directed that the Plaintiff would participate in the training process (to prevent further scope disputes) and that the Defendant would only have to produce the top 10,000 results (to alleviate cost concerns).  Additionally, the Court decided that the Defendant was not required to execute a quality control effort for the TAR process, and that the Plaintiff would have to share 50% of the costs of a quality control effort, if it insisted on there being one:

But there is another reason why the Court rejects Plaintiffs’ arguments regarding cost shifting. The quality assurance step is not a document that the City has and that Plaintiffs want and are asking the City to produce. The quality assurance step is part of a program that the Court ordered the City to buy for $50,000 and use in this case. It is a feature that does not exist in traditional production, i.e., reviewing the documents and producing them to the other side. Nor is it a feature in key word searches, the method Plaintiffs were championing when the Court became involved and ordered the City to use predictive coding. It is a feature available in predictive coding which quantifies the level of accuracy in the search. The fact that it exists in the system does not mean that the City has to employ it and pay for it. If Plaintiffs truly believe that quality assurance step is important, they should pay for employing it by splitting the costs with the City.  [emphasis added]

Three More Recent Cases

1. FCA US, LLC v. Cummins, Inc., No. 16-12883 (E.D. Mich. Mar. 28, 2017) – This case once again tackles the question of whether search terms should be applied before TAR or after, and although it does not provide in-depth analysis of the issue, it does come down on the side of after:

While the parties agree on many issues relating to discovery and particularly electronic discovery, they unfortunately cannot reach agreement over whether the universe of electronic material subject to TAR review should first be culled by the use of search terms. . . .  They have left the matter for the Court to decide.  The Court does so rather reluctantly. . . .  Be that as it may, having reviewed the letters and proposed orders together with some technical in-house assistance including a read of The Sedona Conference TAR Case Law Primer, 18 Sedona Con. J. ___ (forthcoming 2017), the Court is satisfied that FCA has the better position.  Applying TAR to the universe of electronic material before any keyword search reduces the universe of electronic material is the preferred method.  The TAR results can then be culled by the use of search terms or other methods.  [emphasis added]

2. Entrata, Inc. (Property Solutions Int’l) v. Yardi Systems, Inc., No. 2: 15-cv-00102 (Utah D. Jun. 20, 2018) – In this case, the requesting party sought to compel the producing party to turn over “the complete methodology and results” of its TAR process so that they might “assess the adequacy” of that process.  The Court, however, was not willing to order such radical transparency without some reason to do so:

Notably, Yardi has not provided any specific examples of deficiencies in Entrata’s document production or any specific reason why it questions the adequacy of Entrata’s document collection and review.  Without more detailed reasons why production of Entrata’s TAR information is needed, the court is unwilling to order Entrata to produce such information.  [emphasis added]

3. In re Broiler Chicken Antitrust Litig., No. 1:16-cv-08637 (S.D. Ill. Jan. 3, 2018) – In this case, the Magistrate Judge and Special Master Maura Grossman, who we have mentioned in this series before, released a detailed search methodology document that could serve as a model protocol for other cases. It addresses both keyword and TAR efforts, as well as a range of specifics about document sourcing, culling, searching, and validation.

Five International Cases

In addition to the plethora of domestic cases we have reviewed in this survey, courts in several other countries have also issued decisions approving the use of TAR:

1. Ireland – Irish Bank Resol. Corp. v. Quinn, [2015] IEHC 175 (H. Ct.) (Ir.) – approved the use of TAR over the requesting party’s objection
2. England – Pyrrho Inv. Ltd. v. MWB Prop. Ltd., [2016] EWHC (Ch) 256 (Eng.). – approved the use of TAR at the joint request of the parties
3. England – David Brown v. BCA Trading Ltd., [2016] EWHC (Ch) 1464 (Eng.) – approved the use of TAR over the requesting party’s objection
4. Australia – Money Max Int’l Pty Ltd. (Tr.) v. QBE Ins. Grp. Ltd., [2016] FCAFC 148 (Austl.) – ordered the disclosure of TAR process information to meet and confer about it
5. Australia – McConnell Dowell Constructors (Aust) Pty Ltd v Santam Ltd & Ors (No 1), [2016] VSC 734 (Austl.) – approved the use of TAR at the joint request of the parties

Upcoming in this Series

Next, in the final Part of this series, we will pull together the key takeaways from across the cases in our survey.