Over the nine years since it first rose to prominence in eDiscovery, technology-assisted review has expanded to include numerous new tools, more potential workflows, and a variety of legal issues
In “Alphabet Soup: TAR, CAL, and Assisted Review,” we discussed TAR’s rise to prominence and the challenges that it has created for practitioners. In “Key Terms and Concepts,” we discussed the key terms and concepts practitioners need to know. In “Applications, Aptitudes, and Effectiveness,” we discussed use cases, relative merits, and overall efficacy. In “Are You Allowed to Use TAR?,” we discussed case law on authorization to use TAR. In “Can You Be Compelled to Use TAR?,” we discussed case law on being compelling or directed to use TAR. In this Part, we review case law discussing the timing of TAR process objections.
We have seen in the cases we have reviewed so far that the decision of whether or not to use a TAR approach generally rests with the producing parties. Requesting parties cannot stop them from using a TAR approach if they wish to, or make them use a TAR approach if they don’t wish to. What if a requesting party has concerns, though, about the specifics of a producing party’s TAR process? When can TAR process objections be raised?
The available case law on the use of TAR approaches for discovery suggests that 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. Whether or not a party has satisfied their obligations typically must be determined as a fact-based, post hoc analysis.
Several cases have discussed the appropriate timing of TAR process objections, including:
In order to determine proportionality, it is necessary to have more information than the parties (or the Court) now has, including how many relevant documents will be produced and at what cost . . . . In the final sample of documents deemed irrelevant, are any relevant documents found that are “hot,” “smoking gun” documents (i.e., highly relevant)? Or are the only relevant documents more of the same thing? One hot document may require the software to be re-trained (or some other search method employed), while several documents that really do not add anything to the case might not matter. These types of questions are better decided “down the road,” when real information is available to the parties and the Court. [emphasis added]
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. . . . 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]
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]
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 when results are objectionable.