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 this Part, we review the question of whether to seek prior approval for TAR use.
The next TAR case to make headlines was Dynamo Holdings Limited Partnership, et al., v. Commissioner of Internal Revenue (USTC Sep. 17, 2014), which was a U.S. Tax Court case. In the case, the Respondent wanted the Petitioners to produce the materials on two back-up tapes (or produce copies of the tapes), but the Petitioners estimated that completing review of the materials on the tapes would “take many months and cost at least $450,000.”
Not wanting to spend that much time or money, the Petitioners asked the Judge to permit them to utilize a TAR approach (once again, “predictive coding”) instead of traditional manual review. The Respondent objected to the Petitioners request to use a TAR approach, making two primary arguments. First, they argued that TAR was “unproven technology,” and second, they argued that the Petitioners could instead produce the tapes unreviewed and rely on a clawback agreement for protection.
Noting that the United States Tax Court had “not yet formally sanctioned” the use of TAR, the Judge took the opportunity to do so. In doing so, the Judge reviewed the testimony of experts, as well as relevant articles and cases that we’ve discussed in this series (e.g., Moore, Progressive, and In Re: Actos). Based on this review, the Judge concludes that TAR approaches and tools are not “unproven” but are, in fact, “prevalent in the technological industry” and “widely accepted for limiting e-discovery to relevant documents and effecting discovery of ESI without an undue burden.” Based on this analysis, he allows the Petitioners to utilize a TAR approach as long as there is transparency and cooperation:
Where, as here, petitioners reasonably request to use predictive coding to conserve time and expense, and represent to the Court that they will retain electronic discovery experts to meet with respondent’s counsel or his experts to conduct a search acceptable to respondent, we see no reason petitioners should not be allowed to use predictive coding to respond to respondent’s discovery request. [emphasis added]
In addition to addressing the use of TAR in general, the Judge also addresses the question of whether or not a producing party needs to seek judicial permission before utilizing a TAR approach in discovery, as the Petitioners had done in this case. He argues that producing parties should not need to seek prior approval from judges and that the appropriate time to object to a discovery approach is after production, if there is reason to believe the production is incomplete:
And although it is a proper role of the Court to supervise the discovery process and intervene when it is abused by the parties, the Court is not normally in the business of dictating to parties the process that they should use when responding to discovery. If our focus were on paper discovery, we would not (for example) be dictating to a party the manner in which it should review documents for responsiveness or privilege, such as whether that review should be done by a paralegal, a junior attorney, or a senior attorney. Yet that is, in essence, what the parties are asking the Court to consider – whether document review should be done by humans or with the assistance of computers. Respondent fears an incomplete response to his discovery. If respondent believes that the ultimate discovery response is incomplete and can support that belief, he can file another motion to compel at that time. [emphasis added]
Almost two years after the above order, another order in the case provided a window into the results of the TAR process and the Respondent’s objections to them. The parties had, with the occasional help of the Court, cooperated on developing a protocol and implementing a TAR approach, resulting in the production of around 180,000 responsive documents that contained a few thousand relevant documents.
After review of the produced materials, the Respondent argued that the production was incomplete and sought to compel the production of additional search term results it believed were also relevant but that had not been found by the TAR approach. The Judge, however, was not convinced that more discovery was warranted because the standard for a production’s completeness is reasonableness not perfection:
We will assume that it was flawed, but the question remains whether any relief should be afforded.
Respondent’s motion is predicated on two myths.
The first is the myth of human review. . . .
Research shows that human review is far from perfect. . . .
The second myth is the myth of a perfect response. The [Respondent] is seeking a perfect response to his discovery request, but our Rules do not require a perfect response. . . .
Likewise, “the Federal Rules of Civil Procedure do not require perfection.” Like the Tax Court Rules, the Federal Rule of Civil Procedure 26(g) only requires a party to make a “reasonable inquiry” when making discovery responses. [internal citation omitted; emphasis added]
Upcoming in this Series
In the next Part of this series, we will review the Rio Tinto case, in which TAR case law came full circle.