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 “A Few Final Cases of Note,” we discussed a several remaining cases, and in this final Part, we review the key takeaways from across our case law survey.
Over the course of this survey, we have taken an in-depth look at a dozen cases and touched briefly on eleven others. Together, these twenty-three cases have provided us with an effective overview of the technology-assisted review case law landscape, including what’s been settled and what remains unresolved. We conclude our survey with a discussion of the five key takeaways we can derive from our review of these cases. For your convenience, here is a quick reference guide to the key cases we have reviewed:
As clearly shown by da Silva Moore, Global Aerospace, In re: Actos, Bridgestone, Dynamo, Rio Tinto, and others, courts in the United States generally accept the use of technology-assisted review as a viable alternative to traditional methods. Additionally, we have seen on-the-record acceptance of its use in Ireland, England, and Australia.
Moreover, as emphasized in Dynamo and others, parties are not required to seek prior judicial approval for the use of TAR any more than they would do so for a traditional review methodology.
Although you are free to use TAR yourself, you cannot compel another party to use TAR if they prefer another methodology. As emphasized in Kleen Products, Hyles, and others, courts adhere to Sedona Principle 6 and the idea that producing parties are in the best position to choose appropriate methods. The requesting party’s interest is in the results rather than the process employed.
As emphasized in da Silva Moore, Dynamo, Hyles, and others, parties are not meant to raise adequacy objections to another party’s discovery processes until after at least some production has actually occurred. There is no mechanism for objecting to a hypothetical efficacy issue with a process that has yet to be carried out; objections must be rooted in identified issues with actual results (as also noted in Entrata).
Whether a party has satisfied their obligations can only be determined as a fact-based, post hoc analysis like the one conducted in Winfield.
A majority of the reported cases approving the use of TAR have involved the proponent voluntarily offering or agreeing to provide transparency into its TAR training and validation processes, which courts have viewed favorably. In a smaller number of cases, like Independent Living Center, Bridgestone, and Dynamo, such transparency has been required by the judge as a condition of TAR use, and in at least one case (Progressive), the lack of voluntary transparency was cited as a factor in declining to allow TAR use.
In cases like In re: Biomet, Winfield, and Entrata, however, where parties have tried to compel such transparency, judges have declined to compel most of what’s been requested, citing relevance, privilege, and work product concerns. Although In re: Biomet didn’t compel the transparency, it did include a warning that a lack of voluntary transparency might negatively affect the application of judicial discretion.
Finally, the question whether search terms can be used before TAR is the least clearly resolved. In re: Biomet, Bridgestone, and Rio Tinto allowed parties to apply search term filtering to a document population before applying a TAR methodology to the results, but they did so over the objections of the requesting parties and, in Rio Tinto, over the stated preference of the judge. Moreover, in FCA, the judge reviewed the relevant literature and concluded that the better approach was to use TAR first and, on that basis, declined to allow search terms until afterwards.
Although courts’ preference for allowing producing parties to choose their methods likely means it will be permitted, it does seem likely to draw greater scrutiny to the process and its results.
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