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Magistrate Judge Peck Encourages Litigants – But Won’t Force Them – to Use TAR

“A decisive ‘NO.'” That’s Magistrate Judge Peck’s answer to the question of whether a party may be forced to use technology assisted review to locate responsive documents when it preferred to use keyword searching.

In this employment discrimination case against the City of New York, the parties asked the court to resolve a number of discovery disputes, including a disagreement about the methodology that should be used to find responsive documents. The City preferred to use keyword searches, and the parties had engaged in some preliminary discussions about the appropriate keywords. But Plaintiff’s counsel consulted an e-discovery vendor, and proposed that the City should use technology assisted review (“TAR”) as a “more cost-effective and efficient method of obtaining ESI from Defendants.” The City would not agree to use TAR, citing concerns about cost and, based on the history of other discovery negotiations, about the likely inability of the parties to collaborate on a TAR process.

Judge Peck Order on TAR in Hyles v. New York City

In his Order dated August 1, 2016, Judge Peck agreed with Plaintiff that, “in general, TAR is cheaper, more efficient and superior to keyword searching.” The court pointed out the inherent limitations of keyword searching, and the need for “careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms.” And Judge Peck acknowledged that it is “fair to say that I am a judicial advocate for the use of TAR in appropriate cases.”

But in the end, the court found that freedom of choice – as embodied in Principle 6 of the Sedona Principles—must carry the day, and held that the City may use the search methodology of its choice. According to Principle 6,

Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.

The Sedona Principles: Second Edition, Best Practices Recommendations & Principles for Addressing Electronic Document Production, Principle 6 (available at www.TheSedonaConference.org). (For a discussion of two other cases embracing Principle 6 in the context of TAR, take a look at this post.)

Judge Peck went on to explain that, while a “production using keywords may not be as complete as it would be if TAR were used,” the applicable standard is not perfection, or using the “best” tool. Rather, the test is whether the search methodology is reasonable and proportional. And in this case, keyword searches met that test. So, although Judge Peck “would have liked the City to use TAR in this case,” he ruled that he “cannot, and will not, force the City to do so.”

At DiscoverReady, we encourage our clients to use predictive coding and other forms of TAR to streamline document review and deliver high-quality productions at a reasonable cost. But we also recognize that those tools aren’t right for every case. Keyword searches — when carefully crafted, and subjected to testing and validation – will often perform the job quite well. If you’d like to talk with us about our approaches to document search and review — whether cutting-edge, or tried-and-true — reach out to us at better@discoverready.com.

Maureen O'Neill