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 this Part, we review the Progressive and Bridgestone cases.
We turn our attention next to two contemporaneous cases that both concerned attempts to switch from a more traditional approach to a TAR approach part way through a discovery effort and that both considered whether TAR should be applied after search terms have already been used. Those cases are Progressive Casualty Insurance Company v. Delaney (D. Nev. Jul. 18, 2014) and Bridgestone Americas, Inc. v. International Business Machines Corp. (M.D. Tenn. Jul. 22, 2014). In each case, a discovery plan had been agreed upon by the parties and that plan had been memorialized in a case management order prior to the attempt to change approaches.
According to the “Joint Proposed ESI Protocol,” the Plaintiff was to collect from agreed sources, run agreed search terms, and produce all non-privileged results (optionally, conducting manual review for responsiveness first), subject to clawback protections. Following this plan, the Plaintiff initially collected around 1.8 million documents, from which the search terms produced about 565,000 results. The Plaintiff began a manual review effort but estimated completing it would take 6-8 months and incur “an unacceptably high cost,” so the Plaintiff started exploring TAR alternatives instead.
They eventually notified the Defendants of their intention to propose a new plan, triggering months of meetings and hearings, which failed to result in a new agreement and exhausted the originally agreed discovery timeline. Instead, the parties ended up submitting competing proposals to the Magistrate Judge:
Ultimately, the Magistrate Judge did not accept the Plaintiff’s proposal to switch to a TAR process midstream. The Magistrate Judge was not opposed to the use of TAR, in theory but was not okay with the Plaintiff’s unilateral deviation from the original protocol:
In this case, the parties negotiated an ESI protocol which was adopted by the court . . . Had the parties worked with their e-discovery consultants and agreed at the onset of this case to a predictive coding-based ESI protocol, the court would not hesitate to approve a transparent, mutually agreed upon ESI protocol. However, this is not what happened. [emphasis added]
The Magistrate Judge was also persuaded by the Defendants’ arguments about potential additional conflicts, about following the tool’s recommended processes, and about needing adequate transparency and cooperation, noting about the last one:
[The Plaintiff] is unwilling to engage in the type of cooperation and transparency that its own e-discovery consultant has so comprehensibly and persuasively explained is needed for a predictive coding protocol to be accepted by the court or opposing counsel as a reasonable method to search for and produce responsive ESI.
Based on these concerns, the Magistrate Judge accepted the Defendants’ proposal and directed the Plaintiff to produce all 565,000 search results, except those that had already been identified as likely to be privileged, which could be withheld for logging as contemplated by the originally agreed protocol.
In the Bridgestone case, the Plaintiff also proceeded with discovery according to a negotiated protocol, and after collection and the application of the search terms provided by the Defendant, around 2,000,000 documents remained to be reviewed. Given this enormous volume, the Plaintiff asked if it could use a TAR process instead of traditional review.
The Defendant objected to what it called an “unwarranted change” from the originally agreed protocol. The Defendant argued that “it is unfair to use predictive coding after an initial screening has been done with search terms.” Both parties submitted lengthy pleadings to the court over the issue, and the Magistrate Judge held a “lengthy telephone conference” on it.
The Magistrate Judge ultimately concluded that whether and when to use TAR comes down to a “judgment call” focused on efficiency and the needs of the specific case:
Predictive coding is a rapidly developing field in which the Sedona Conference has devoted a good deal of time and effort to [sic], and has provided various best practices suggestions. Magistrate Judge Peck has written an excellent article on the subject and has issued opinions concerning predictive coding. In the final analysis, the uses [sic] of predictive coding is a judgment call, hopefully keeping in mind the exhortation of Rule 26 that discovery be tailored by the court to be as efficient and cost-effective as possible. In this case, we are talking about millions of documents to be reviewed with costs likewise in the millions. There is no single, simple, correct solution possible under these circumstances. [emphasis added]
Based on his analysis of the needs of this case and the available options – as well as the Plaintiff’s promises of process transparency, the Magistrate Judge then allowed the Plaintiff to “switch horses in midstream” and use TAR to review the 2,000,000 search results instead of traditional, manual review. He also gave the Defendants the option to switch to a TAR approach too, if they wished.
In a subsequent order concerning the ongoing discovery efforts, the Magistrate Judge reemphasized the importance of transparency to using a TAR process, writing: “. . . to the extent they use predictive coding, he expects full transparency in how the predictive coding is established and used.”
Upcoming in this Series
In the next Part of this series, we will review the Dynamo case, in which another court approved TAR options and the question of whether to seek approval in advance was explored.