Are You Allowed to Use TAR?, Assisted Review Series Part 4

Over the nine years since it first rose to prominence in eDiscovery, technology-assisted review has expanded to include numerous new tools, more potential workflows, and a variety of legal issues

In “Alphabet Soup: TAR, CAL, and Assisted Review,” we discussed TAR’s rise to prominence and the challenges that it has created for practitioners.  In “Key Terms and Concepts,” we discussed the key terms and concepts practitioners need to know.  In “Applications, Aptitudes, and Effectiveness,” we discussed use cases, relative merits, and overall efficacy.  In this Part, we review case law discussing whether parties are allowed to use TAR.

The year after technology-assisted review first rose to prominence in eDiscovery, Monique da Silva Moore, et al., v. Publicis Groupe SA & MSL Group, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y. Feb. 24, 2012) became the first case in which the use of TAR was judicially approved.  Since that time, numerous courts – both in the US, and abroad – have addressed the question and have concluded that parties are allowed to use TAR approaches to meet their discovery obligations.

In the Beginning was da Silva Moore 

In da Silva Moore, the plaintiffs were pursuing a class action over alleged gender discrimination by the defendants.  During the course of discovery, the parties reached an impasse over the appropriate methodology by which to evaluate the approximately 3,000,000 emails the defendants had gathered for the matter.  Given the volume of material to be reviewed, the defendants proposed using a predictive coding solution.  The plaintiffs’ objections were not to the use of predictive coding itself but to several specifics of the defendants’ proposed workflow.

Although he made some adjustments to their proposed process, Magistrate Judge Peck approved the use of predictive coding.  In doing so, he tackled the predictive coding topic head on, providing an explanation of its operation, performance comparisons to more traditional methods, and numerous citations to relevant studies and articles.  He explicitly made the case for predictive coding as a desirable, efficient solution for large-scale review challenges.  He based his ultimate approval of its use in the case on five factors:

. . . (1) the parties’ agreement, (2) the vast amount of ESI to be reviewed (over three million documents), (3) the superiority of computer-assisted review to the available alternatives (i.e., linear manual review or keyword searches), (4) the need for cost effectiveness and proportionality under Rule 26(b)(2)(C), and (5) the transparent process proposed by [the defendants].

Subsequent Cases Approving TAR Use

Since da Silva Moore paved the way, numerous cases have considered whether parties should be allowed to use TAR approaches, including:

• In Global Aerospace Inc. v. Landow Aviation, L.P., No. CL 61040 (Loudoun County, Va. Cir. Ct. Apr. 23, 2012), which concerned the collapse of three airplane hangars and the resulting destruction of fourteen private jets, a Virginia state court approved the defendants’ proposed use of TAR over the plaintiffs’ objections. The defendants’ proposed predictive coding process included transparency into the training process for the plaintiffs and a commitment to hit a minimum recall rate of 75%. 

• In Re: Actos (Pioglitazone) Products Liability Litigation, No. 611-MD-2299 (W.D. La. Jul. 27, 2012) provided the first on-the-record example of a TAR protocol successfully and cooperatively negotiated by the parties. The detailed protocol was memorialized in a Case Management Order and included 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.

• In Bridgestone Americas, Inc. v. International Business Machines Corp., No. 3:13-cv-1196 (M.D. Tenn. Jul. 22, 2014), the plaintiff proceeded with discovery according to a negotiated protocol, which resulted in around 2,000,000 documents to be reviewed. Given this enormous volume, the plaintiff asked if it could use a TAR approach (with process transparency) instead of traditional review, but the defendant objected to what it called an “unwarranted change” from the originally-agreed protocol.  The Magistrate Judge ultimately allowed the plaintiff to “switch horses in midstream” and use TAR, concluding that whether and when to use TAR comes down to a “judgment call” focused on efficiency and the needs of the specific case.

• In Dynamo Holdings Limited Partnership, et al., v. Commissioner of Internal Revenue, 143 T.C. No. 9 (USTC Sep. 17, 2014), which was a US Tax Court case, the respondent wanted the petitioners to produce the materials on two back-up tapes, which the petitioners estimated would “take many months and cost at least $450,000” to review traditionally. The petitioners asked the Judge to permit them to utilize a TAR approach (once again, “predictive coding”) instead.  The respondent objected, arguing that TAR was “unproven technology.”  The Judge reviewed the testimony of experts, as well as relevant articles and cases (e.g., da Silva Moore, In Re: Actos) and concluded that TAR approaches and tools were not “unproven” but were, in fact, “prevalent in the technological industry” and “widely accepted for limiting e-discovery to relevant documents and effecting discovery of ESI without an undue burden” [emphasis added].  Based on this analysis, he allowed the petitioners to utilize a TAR approach as long as there was transparency and cooperation.

• In Rio Tinto PLC v. Vale, S.A., et al., No. 14 Civ. 3042 (RMB) (AJP) (S.D.N.Y. Mar. 2, 2015), the parties reached an agreement about the use of TAR, but the Magistrate Judge’s order accepting their agreement still provides an excellent summary of the state of TAR acceptance as of spring 2015, after the first three years of cases: “In the three years since Da Silva Moore, the case law has developed to the point that it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it.” [emphasis added]

In addition to the plethora of domestic cases approving the use of TAR methodologies, courts in several other countries have also issued decisions approving the use of TAR:

1. Ireland – Irish Bank Resol. Corp. v. Quinn, [2015] IEHC 175 (H. Ct.) (Ir.) – approved the use of TAR over the requesting party’s objection
2. England – Pyrrho Inv. Ltd. v. MWB Prop. Ltd., [2016] EWHC (Ch) 256 (Eng.). – approved the use of TAR at the joint request of the parties
3. England – David Brown v. BCA Trading Ltd., [2016] EWHC (Ch) 1464 (Eng.) – approved the use of TAR over the requesting party’s objection
4. Australia – Money Max Int’l Pty Ltd. (Tr.) v. QBE Ins. Grp. Ltd., [2016] FCAFC 148 (Austl.) – ordered the disclosure of TAR process information to meet and confer about it
5. Australia – McConnell Dowell Constructors (Aust) Pty Ltd v Santam Ltd & Ors (No 1), [2016] VSC 734 (Austl.) – approved the use of TAR at the joint request of the parties

Seeking Prior Permission for TAR Use

In addition to addressing the use of TAR in general, the Judge in Dynamo also addressed the question of whether or not a producing party needs to seek judicial permission before utilizing a TAR approach in discovery, as the petitioners had done in that case and several of the other early cases.  He argued that producing parties should not need to seek prior approval from judges:

And although it is a proper role of the Court to supervise the discovery process and intervene when it is abused by the parties, the Court is not normally in the business of dictating to parties the process that they should use when responding to discovery.  If our focus were on paper discovery, we would not (for example) be dictating to a party the manner in which it should review documents for responsiveness or privilege, such as whether that review should be done by a paralegal, a junior attorney, or a senior attorney.  Yet that is, in essence, what the parties are asking the Court to consider – whether document review should be done by humans or with the assistance of computers.  [emphasis added]

As we will see in the next Part, judges in other cases have made similar observations and many have explicitly endorsed Sedona Principle 6, which states that “[r]esponding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information” [emphasis added].

Upcoming in this Series

In the next Part, we will continue our discussion of assisted review with a look at some of the case law addressing whether and when TAR use might be compelled.