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Technology-Assisted Review


Technology-assisted review (“TAR”) first rose to prominence in the legal industry around 2011 under the name predictive coding.  Although growth has remained slower than expected, signs of TAR’s continued growth and importance abound, and case law continues to accumulate.  From 2012’s da Silva Moore, to 2017’s Winfield and beyond, this series surveys the case law in this area to provide you with the available guidance from the courts.

Still Crazy after All These Years, Technology-Assisted Review Series Part 1

Technology-assisted review (“TAR”) first rose to prominence in the legal industry around 2011 under the name predictive coding. Although growth has remained slower than expected, signs of TAR’s continued growth and importance abound, and case law continues to accumulate. From 2012’s da Silva Moore, to 2017’s Winfield and beyond, this series will survey the case law in this area to provide you with the available guidance from the courts.

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In the Beginning Was da Silva Moore, Technology-Assisted Review Series Part 2

The year after technology-assisted review first rose to prominence in eDiscovery, Monique da Silva Moore, et al., v. Publicis Groupe SA & MSL Group (S.D.N.Y. Feb. 24, 2012) became the first case in which the use of TAR was judicially approved, and Magistrate Judge Peck’s order approving its use in that case included topical education and legal analysis that was very impactful during TAR’s rise.

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Questions of Choice in Kleen Products, Technology-Assisted Review Series Part 3

The next major TAR case after da Silva Moore was Kleen Products LLC, et al., v. Packaging Corporation of America, et al. (N.D. Ill. Aug. 21, 2012), which was significant for its analysis of the method selection question and for its very educational hearing transcripts, which include extensive discussion of Boolean searching, technology-assisted review, and validation methodologies.

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Reported Results in Global Aerospace, Technology-Assisted Review Series Part 4

The next significant technology-assisted review decision came from a state court in Virginia and included both the first results reported on the record and the first instance in which use of TAR was judicially approved over the objections of the requesting parties. Global Aerospace Inc. v. Landow Aviation, L.P. (Loudoun County, Va. Cir. Ct. Apr. 23, 2012) concerned the collapse of three airplane hangars and the resulting destruction of fourteen private jets.

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A Negotiated Protocol in In Re: Actos, Technology-Assisted Review Series Part 5

The next significant TAR case was In Re: Actos (Pioglitazone) Products Liability Litigation (W.D. La. Jul. 27, 2012), which provided the first on-the-record example of a TAR protocol successfully and cooperatively negotiated by the parties. It provided for 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.

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At a Judge’s Direction in EORHB, Technology-Assisted Review Series Part 6

The next newsworthy TAR case was EORHB, Inc. v. HOA Holdings LLC (Del. Ch. Oct. 15, 2012), which was “a complex multimillion dollar commercial indemnity dispute” before the Delaware Court of Chancery, the oldest business court and one of the most respected business courts in the country. In October 2012, in a hearing in this case, the Judge brought up the subject of technology-assisted review on his own and directed the parties to use it.

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Debating Process and Transparency in Biomet, Technology-Assisted Review Series Part 7

The next prominent TAR case was In Re: Biomet M2a Magnum Hip Implant Products Liability Litigation (N.D. Ind. Aug.21, 2013), which was consolidated multidistrict product liability litigation.  The litigation was eventually settled, but not before substantial discovery work was done and two orders concerning the use of TAR were issued.

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Changing Horses Midstream in Progressive and Bridgestone, Technology-Assisted Review Series Part 8

We turn our attention next to two cases that both concerned attempts to switch from a traditional approach to a TAR approach midstream and that considered whether TAR should be applied after search terms have already been used. Those cases are Progressive Casualty Insurance Company v. Delaney (D. Nev. Jul. 18, 2014) and Bridgestone Americas, Inc. v. International Business Machines Corp. (M.D. Tenn. Jul. 22, 2014).

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Seeking Approval and Perfection in Dynamo, Technology-Assisted Review Series Part 9

The next TAR case to make headlines was Dynamo Holdings Limited Partnership, et al., v. Commissioner of Internal Revenue (USTC Sep. 17, 2014), which was a U.S. Tax Court case. The case was the first in which the U.S. Tax Court approved the use of technology-assisted review, and it addressed the question of whether prior approval for TAR use should be sought.

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Bringing it Full Circle in Rio Tinto, Technology-Assisted Review Series Part 10

The next prominent TAR case was Rio Tinto PLC v. Vale, S.A., et al. (S.D.N.Y. Mar. 2, 2015), which was another decision from Magistrate Judge Peck. This is another case in which 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.

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Trying to Compel TAR Use in Hyles, Technology-Assisted Review Series Part 11

The next major TAR case for us to review is the third and final prominent case on the topic from Magistrate Judge Peck. In Hyles v. New York City (S.D.N.Y. Aug. 1, 2016), a series of discovery delays and conflicts led to the referral of the case to Magistrate Judge Peck, who resolved a number of discovery questions for the parties, including the question of whether a requesting party can compel a producing party to use TAR.

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Addressing Process Adequacy and Transparency in Winfield, Technology-Assisted Review Series Part 12

The next prominent technology-assisted review case requiring our attention is Winfield v. City of New York (S.D.N.Y. Nov. 27, 2017). The case wound up before the Magistrate Judge for the resolution of a variety of discovery disputes, including the Plaintiffs’ challenges to the City’s TAR process and their attempts to compel additional transparency regarding that process.

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