The Kleen Products case was a consolidated action over alleged anticompetitive behavior in the corrugated cardboard industry. Discovery in the case started at the beginning of 2011, but at the end of the year, several discovery issues remained unresolved, including the search methodology to be used:
The plaintiffs opposed this plan and wanted the defendants to utilize a “content-based advanced analytics” methodology instead (a.k.a. predictive coding, a.k.a. TAR), which they argued would likely find a much higher percentage of the relevant material
Extensivehearings were held on the proposed search tools and methodologies, and during them, the Magistrate Judge emphasized her support for Sedona Principle 6 and the idea that responding parties are best situated to pick their own discovery processes:
I am a believer of principle 6 of Sedona, and I’m not just because it’s Sedona, but I think the people who are producing the records, producing the documents, are in a better position to know, since they have to do the work, spend the money, spend the time, they know their people, they know their material, so as a basic premise, I think that’s a pretty fair premise here. [emphasis added]
Consistent with this approach, she also emphasized the importance of the results and their validation over the tool or process used to achieve them: “I assume . . . what you really are interested in is a search, regardless if it’s Boolean or computer-assisted, that is fair and statistically – and that can be validated statistically because that would be a good word search” [emphasis added]. She goes so far as to say that the whole TAR debate was “almost . . . a detour.”
Based on those two ideas – that responding parties choose methods and requesting parties judge results, and in light of the extensive work already completed by the defendants, the Magistrate Judge urged the parties to try again to consider whether the defendants’ search methodology might be tweaked in some way that would satisfy the plaintiffs. After an additional five months of meetings and negotiation, the parties reached an agreement regarding search methodology for the first phase of discovery that dropped the demand for TAR.
Other Cases on Compelling TAR Use
Since Kleen Products, several more cases have considered whether one party can compel another party to use a TAR approach for discovery, including:
In Hyles v. New York City, No. 10 Civ. 3119 (AT) (AJP) (S.D.N.Y. Aug. 1, 2016), a series of discovery delays and conflicts led to the referral of the case to Magistrate Judge Peck, who resolved a number of discovery questions for the parties, including the question of: “. . . whether, at [the plaintiff’s] request, the defendant . . . can be forced to use TAR (technology assisted review, aka predictive coding) when the [defendant] prefers to use keyword searching.” His short answer was “a decisive ‘NO’” [emphasis added]. Like the Magistrate Judge in Kleen Products, he cited to Sedona Principle 6. Moreover, he added that “[the plaintiff’s] counsel candidly admitted at the conference that they have no authority to support their request to force the [defendant] to use TAR” [emphasis added].
In the case of In re Viagra Prods. Liab. Litig., No. 16-md-02691-RS (SK) (N.D. Cal. Oct. 14, 2016), the plaintiffs sought to compel the defendant to use a TAR approach, arguing that TAR is “a more sophisticated tool” that “would save time and money for both sides.” The defendant wished instead to use an iteratively-refined search term approach. After reviewing relevant case law (including Hyles), the Magistrate Judge concluded that “the responding party is the one best situated to decide how to search for and produce ESI responsive to discovery requests” and concluded that there was no basis on which “the Court could compel [the defendant] to use a particular form of ESI, especially in the absence of any evidence that [the defendant’s] preferred method would produce, or has produced, insufficient discovery responses” [emphasis added].
In the recent case of In re Mercedes-Benz Emissions Litig., Case No. 2:16-cv-881 (D.N.J. Jan. 8, 2020), the plaintiffs wanted the defendants to use predictive coding or another form of TAR, while the defendants wished to employ a “custodian-and-search-term approach.” The plaintiffs ultimately asked the Special Master to compel the defendants’ use of TAR, arguing that it “yields significantly better results.” The Special Master reviewed relevant case law, as well as Sedona Principle 6, and concluded that – even though he “believes TAR would likely be a more cost effective and efficient methodology for identifying responsive documents” – it’s the defendants’ choice if “they prefer to use the custodian-and-search term approach” [emphasis added]. The Special Master also “cautioned” the defendants, however, that he:
. . . will not look favorably on any future arguments related to burden of discovery requests, specifically cost and proportionality, when Defendants have chosen to utilize the custodian-and-search term approach despite wide acceptance that TAR is cheaper, more efficient and superiorto keyword searching. [emphasis added]
Judges Directing TAR Use
Although another party cannot compel you to use a TAR approach, there may be some situations in which a judge will direct its use to expedite a matter, for example:
In Independent Living Center of Southern California, et al. v. City of Los Angeles, et al., No. 212-CV-00551 (C.D. Cal. Jun. 26, 2014), 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, if the plaintiff insisted on there being one, they would have to pay 50% of the costs for it.
In Winfield v. City of New York, No. 15-CV-05236 (LTS) (KHP) (S.D.N.Y. Nov. 27, 2017), the defendant began traditional manual review of collected materials, but “[p]laintiffs lodged numerous complaints about the pace of discovery and document review.” In response the Magistrate Judgedirected the defendantto complete manual review of “certain custodians and begin using Technology Assisted Review (‘TAR’) software (also commonly referred to as ‘predictive coding’) to hasten the identification, review, and production of documents responsive to Plaintiffs’ document requests” [emphasis added].
Upcoming in this Series
In the next Part, we will continue our discussion of assisted review with a look at some of the case law addressing process objections.
About the Author
Director of Education
Matthew Verga is an electronic discovery expert proficient at leveraging his legal experience as an attorney, his technical knowledge as a practitioner, and his skills as a communicator to make complex eDiscovery topics accessible to diverse audiences. A thirteen-year industry veteran, Matthew has worked across every phase of the EDRM and at every level from the project trenches to enterprise program design. He leverages this background to produce engaging educational content to empower practitioners at all levels with knowledge they can use to improve their projects, their careers, and their organizations.