Technology-assisted review (“TAR”) first rose to prominence in the legal industry around 2011 under the name predictive coding. Although growth has remained slower than expected, signs of TAR’s continued growth and importance abound, and case law continues to accumulate. From 2012’s da Silva Moore, to 2017’s Winfield and beyond, this series will survey the case law in this area to provide you with the available guidance from the courts.
The year after technology-assisted review first rose to prominence in eDiscovery, Monique da Silva Moore, et al., v. Publicis Groupe SA & MSL Group (S.D.N.Y. Feb. 24, 2012) became the first case in which the use of TAR was judicially approved, and Magistrate Judge Peck’s order approving its use in that case included topical education and legal analysis that was very impactful during TAR’s rise.
The next major TAR case after da Silva Moore was Kleen Products LLC, et al., v. Packaging Corporation of America, et al. (N.D. Ill. Aug. 21, 2012), which was significant for its analysis of the method selection question and for its very educational hearing transcripts, which include extensive discussion of Boolean searching, technology-assisted review, and validation methodologies.
The next significant technology-assisted review decision came from a state court in Virginia and included both the first results reported on the record and the first instance in which use of TAR was judicially approved over the objections of the requesting parties. Global Aerospace Inc. v. Landow Aviation, L.P. (Loudoun County, Va. Cir. Ct. Apr. 23, 2012) concerned the collapse of three airplane hangars and the resulting destruction of fourteen private jets.
The next significant TAR case was In Re: Actos (Pioglitazone) Products Liability Litigation (W.D. La. Jul. 27, 2012), which provided the first on-the-record example of a TAR protocol successfully and cooperatively negotiated by the parties. It provided for testing of suitability before the full effort, plans for transparency and cooperation throughout the effort, and validation steps to measure the success of the effort.
The next newsworthy TAR case was EORHB, Inc. v. HOA Holdings LLC (Del. Ch. Oct. 15, 2012), which was “a complex multimillion dollar commercial indemnity dispute” before the Delaware Court of Chancery, the oldest business court and one of the most respected business courts in the country. In October 2012, in a hearing in this case, the Judge brought up the subject of technology-assisted review on his own and directed the parties to use it.
The next prominent TAR case was In Re: Biomet M2a Magnum Hip Implant Products Liability Litigation (N.D. Ind. Aug.21, 2013), which was consolidated multidistrict product liability litigation. The litigation was eventually settled, but not before substantial discovery work was done and two orders concerning the use of TAR were issued.