It has been just over three years since Southern District of New York Magistrate Judge Andrew J. Peck issued a seminal electronic discovery decision in Da Silva Moore v. Publicis Groupe, 287 F.R.D. 182 (S.D.N.Y. 2012), approving the use of advanced document review software in place of more common approaches such as keyword searches or linear review by human reviewers. See "Federal Court Approves the Use of 'Predictive Coding' Technology-Assisted Document Review", available at http://www.kramerlevin.com. In his most recent decision on the topic, Rio Tinto v. Vale, 2015 WL 872294 (S.D.N.Y. Mar. 2, 2015), Judge Peck reaffirmed his approval of technology-assisted review, now commonly referred to as "TAR." As in Da Silva Moore, the parties in Rio Tinto had agreed upon a TAR protocol and sought the court's approval. Judge Peck declined to so-order the parties' stipulated TAR protocol in favor of rendering a short decision on the issue "because of the interest within the e-discovery community about TAR cases and protocols." Id. at *3. He attached to the decision, the parties' joint letter and proposed TAR protocol "for whatever benefit [they] might be to subsequent cases." Id. at **4-9.
At the outset, Judge Peck noted that in the three years since Da Silva Moore, "it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it." Id. at **1-2 (collecting cases from the federal tax and district courts in Arkansas, California, Nebraska, New York, and Tennessee, as well as Virginia and Delaware state courts) (emphasis added). He noted, however, that the courts have split where the requesting party has sought that the producing party use TAR and the producing party has resisted. See id. at *2. Judge Peck also highlighted a recent Tax Court decision, Dynamo Holdings Ltd. P'Ship v. Comm'r of Internal Revenue, 143 T.C. 9, 2014 WL 4636526, at *5 (U.S.T.C. Sept. 17, 2014), in which the Tax Court rejected an argument by the IRS that TAR was an "unproved technology," holding instead that "the technology industry now considers predictive coding to be widely accepted for limiting e-discovery to relevant documents and effecting discovery of ESI without an undue burden."
Judge Peck stressed the need for cooperation between parties - generally - but especially when implementing a TAR protocol. He noted that courts have split as to whether to order transparency or cooperation, such as whether to require sharing of document seed sets (documents coded by a person knowledgeable about the case in order to train the algorithm for application to the entire universe of documents subject to review) or to require full access to non-responsive documents (other than privileged). Id. at **2-3. Still, the decision generally encourages cooperation and transparency where possible. Judge Peck noted that where cooperation was not forthcoming, the requesting party still had the means from which to confirm the completeness of the production or identify indicia to the contrary, such as "statistical estimation of recall at the conclusion of the review as well as by whether there are gaps in the production, and quality control review of samples from the documents categorized as non- responsive." Id. at *3. While Judge Peck is a well-known and regarded proponent of TAR, he "stressed" that it would be "inappropriate to hold TAR to a higher standard than keywords or manual review," recognizing that such elevated standards could serve to "discourage parties from using TAR for fear of spending more in motion practice than the savings from using TAR for review." Id. at *3. It is worth considering that such fears (and the likelihood of expensive motion practice) could be allayed by a detailed and thorough TAR protocol with appropriate quality assurances, prepared cooperatively between litigants.
Decisions such as Da Silva Moore and Rio Tinto continue to provide guidance and assurance on the appropriate use of TAR to satisfy production requirements. As was true three years ago when the Da Silva Moore decision issued, predictive coding remains an appropriate approach for certain document review projects and, if used properly, may significantly reduce the cost of document review. If the universe of documents to be reviewed is voluminous, litigants should consider the use of TAR software, in consultation with e-discovery counsel.