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 this Part, we review his third and final.
The next major TAR case for us to review is the third and final prominent case on the topic from Magistrate Judge Peck. In Hyles v. New York City (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  (i.e., the responding party) can be forced to use TAR (technology assisted review, aka predictive coding) when the [defendant] prefers to use keyword searching.
As the parties worked, they resolved some key discovery questions but needed Magistrate Judge Peck to resolve others. For example, the parties agreed on a starting date range, but Magistrate Judge Peck had to select a compromise end date. The parties agreed on nine key custodians, but Magistrate Judge Peck had to order staged discovery to resolve a dispute over an additional six. Most significantly, the parties disagreed on the search methodology to be employed:
After the parties had initial discussions about the [defendant] using keywords, [plaintiff’s] counsel consulted an ediscovery vendor and proposed that the [defendant] should use TAR as a “more cost-effective and efficient method of obtaining ESI from Defendants.” The [defendant] declined, both because of cost and concerns that the parties, based on their history of scope negotiations, would not be able to collaborate to develop the seed set for a TAR process. [internal citations, footnote omitted, emphasis added]
Magistrate Judge Peck made no secret of his enthusiasm for TAR as an alternative to traditional keyword searching, beginning his discussion by writing: “[The Plaintiff] absolutely is correct that in general, TAR is cheaper, more efficient and superior to keyword searching. He then reviewed his own past decisions on the subject and others to elaborate on why and explain the state of the law on the topic. He also distinguished this case from prior debates, which had focused on forcing a switch midway through discovery:
Since the search methodology issue arose in this case before the City spent much, if any, money on searching for responsive ESI, this case squarely raises the issue of whether the requesting party can have the Court force the responding party to use TAR. [emphasis added]
As Magistrate Judge Peck stated at the beginning of the order, his short answer is “a decisive ‘NO.’” Like the Judge in Kleen Products, he cites to Sedona Principle 6, quoting: “Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.”
Moreover, he adds 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.” And finally, Magistrate Judge Peck reminds the parties of what is actually required from a producing party:
While [the plaintiff] may well be correct that production using keywords may not be as complete as it would be if TAR were used, the standard is not perfection, or using the “best” tool, but whether the search results are reasonable and proportional. [internal citations omitted, emphasis added]
Magistrate Judge Peck also joins – for a second time – our list of judges that want requesting parties to hold their methodology objections until there are actual results to evaluate, writing:
The [defendant] can use the search method of its choice. If [the plaintiff] later demonstrates deficiencies in the [defendant’s] production, the [defendant] may have to re-do its search. But that is not a basis for Court intervention at this stage of the case. [footnote omitted, emphasis added]
He then quotes from Dynamo making the same point.
In concluding, Magistrate Judge Peck also makes one observation about how this analysis could change in the future: “There may come a time when TAR is so widely used that it might be unreasonable for a party to decline to use TAR. We are not there yet.”
Upcoming in this Series
In the next Part of this series, we will review the widely-discussed Winfield case from late 2017.