Nathan M. Crystal, “Predictive coding” and other TAR as well-accepted methods of document review in federal courts

Four years after Da Silva Moorev. Publicis Groupe., 287 F.R.D. 182 (S.D.N.Y. 2012), laid the foundation for use of predictive coding or technology assisted review (TAR) in electronic discovery, Judge Peck has issued a new opinion dealing with predictive coding. In this fraud case, he stressed that it is “inappropriate to hold TAR to a higher standard than keywords or manual review. Doing so discourages parties from using TAR for fear of spending more in motion practice than the savings from using TAR for review.” Read more …

According to Judge Peck, one TAR issue that remains open is “how transparent and cooperative the parties need to be with respect to the seed or training set(s).” In the case at hand, the court did not rule on the issue of seed transparency, because the parties agreed on an ESI protocol that “disclosed all nonprivilege documents in the control sets.” The approved TAR protocol was the result of the parties’ agreement, not of a court order. Rio Tinto PLC v. Vale S.A. 306 F.R.D. 125 (S.D.N.Y. 2015).

For other case law on point, see, e.g., In Re Biomet M2a Magnum Hip Implant Products Liability Litigation, MDL 2391 (2013), authorizing predictive coding; Eorhb V. Hoa Holdings, Llc, C.A. No. 7409-Vcl (Del. Ch. Oct. 15, 2012) , ordering predictive coding sua sponte, In Re Actos (Pioglitazone) Products Liability Litigation, MDL 6:11-md-2299 (2012), ordering a detailed predictive coding that the parties must use.

For other cases and material on predictive coding, see (tag: predictive coding in advanced search)

For more information, Nathan M. Crystal

This blog is a modified extract of my Ethics Watch: Technology and Ethics (“Technethics”), 2015 Year in Review, SC Lawyer 12 (March 2016), forthcoming