Disputes have increasingly arisen between litigants regarding the use of technology assisted review (TAR) as opposed to keyword searching in electronic discovery. TAR typically combines an individual's review of a small fraction of documents with automated tools to prioritize, select, and code the remaining documents. Earlier this month, S.D.N.Y. Magistrate Judge Andrew J. Peck, a supporter of the use of TAR in discovery, discussed whether a defendant could be forced to use TAR when the defendant preferred to use keyword searching in Hyles v. New York City, No. 10 Civ. 3119 (AT) (AJP) (S.D.N.Y. Aug. 1, 2016).
In Hyles, plaintiff's counsel proposed that the defendant use TAR as opposed to keyword searching, claiming that TAR is both a "more cost-effective" and "efficient method of obtaining ESI." Defendant, however, declined to agree to use TAR. The court acknowledged that while some vendor pricing models charge more for TAR than for keyword searching, generally any such "extra cost" is offset by cost savings in review time, thereby making TAR the cheaper, more efficient, and superior option to keyword searching.
Judge Peck also noted that the outcome of this case might have differed if the defendant had spent any money using keyword searching in discovery before the dispute was brought before the court. However, since the defendant had not yet spent money on keyword searches, the case squarely raised the issue of whether a requesting party can have the court order the responding party to use TAR in discovery. According to Judge Peck, "[t]he short answer is a decisive 'NO.'" For the time being, a court cannot order a party to use TAR. However, the time may come when TAR is so widely used that it might be unreasonable for a party to refuse to use TAR.