On July 22, 2014, the Tennessee District Court issued an order in a breach of contract dispute.
Among other issues, the order is interesting because the Court permitted Plaintiff to switch to TAR after having previously agreed to use search terms and manual review.
Defendant objected that the request was an “unwarranted change in the original case management order,” and that it would be unfair to allow the use of TAR “after an initial screening has been done with search terms.”
However, the Court disagreed and deemed that the use of predictive coding would be a much more efficient process considering the millions of documents to be reviewed and the related costs. “The use of predictive coding is a judgment call, hopefully keeping in mind the exhortation of Rule 26 that discovery be tailored by the court to be as efficient and cost-effective as possible.”
The Court permitted Plaintiff to undertake the hybrid approach and to change horses midstream. However, it stressed that considering the midstream change “openness and transparency in what plaintiff is doing will be of critical importance.” Plaintiff agreed to “provide [to defendant] the seed documents they are initially using to set up predictive coding”.