On August 1, 2016, a New York District Court issued an opinion stating that a party cannot be forced to use TAR (technology assisted review) when it prefers to use keyword searching.
In this employment discrimination case, the parties faced a major discovery dispute over which search methodology was to be used: keywords or TAR.
The compelling party argued that TAR would be “more cost-effective and efficient method of obtaining ESI from Defendants.” Defendant, the compelled party 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”.
Judge Peck agreed with Defendant and noted that – even though the compelling party “absolutely is correct that in general, TAR is cheaper, more efficient and superior to keyword searching” and even though in his previous decision Da Silva Moore he approved the use of predictive coding, aka TAR – the use of TAR could not be compelled.
In particular, Judge Peck noted that – contrary to Rio Tinto – the search methodology issue arose “before the City spent much, if any, money on searching for responsive ESI”.
Furthermore, the Judge highlighted his believe that parties should cooperate in discovery and his support of Sedona Principle 6, which states that “responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information”. Concluding, the Court denied Plaintiff’s request stating that it “believes that for most cases today, TAR is the best and most efficient search tool. That is particularly so, according to research studies (cited in Rio Tinto), where the TAR methodology uses continuous active learning (“CAL”), which eliminates issues about the seed set and stabilizing the TAR tool. The Court would have liked the City to use TAR in this case. But the Court cannot, and will not, force the City to do so. 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”.
Hyles v. New York City, 2016 U.S. Dist. LEXIS 100390 (S.D.N.Y. Aug. 1, 2016) can be downloaded at http://law.justia.com…
For more information, Francesca Giannoni-Crystal.