Sedona TAR Case Law Primer

This past August, the Sedona Conference published its TAR Case Law Primer, which is available for download here. It mentions Da Silva Moore v. Publicis Group, 287 F.R.D. 182 (S.D.N.Y. 2012) as the landmark decision which finally provided court approval of Technology Assisted Review and meant that lawyers could proceed with the use of the technology without worrying about being guinea pigs in a test case. In this decision, Judge Peck criticized the common notion of manual review being the gold standard, and endorsed studies showing TAR would be more accurate. Da Silva recommend seven iterative rounds of training for predictive software and specifically cited FRCP 26(b) as a basis for TAR to be used because of the need for costs to be proportional to the amounts at stake and to encourage transparency.

Showing that TAR is making the discovery big time, in Gabriel Technologies Corporation v. Qualcomm Inc. the U.S. District Court for the Southern District of California, awarded $2.8 million in costs related to use of predictive coding in the review of 12 million documents. No. 09-cv-1992, 2013 WL 410103 (S.D. Cal. Feb. 1, 2013).

The Primer discusses cases addressing the issue of whether or not a court will grant a motion requiring a party to use TAR. A federal court in the Northern District of Illinois required the parties to meet and confer on the issue; the Southern District of California denied a request to order the use of TAR where a party had already conducted regular keyword searching; the Delaware Chancery Court declined to order the use of TAR by a party that only had a low volume of documents to search; but the Central District of California did order the use of TAR where the parties has spent months arguing over which search terms to use.

The District of Nevada declined to allow a party to use TAR on its own initiative when it tried to do so late in the discovery process without consulting opposing counsel, but the Middle District of Tennessee allowed a change to TAR in the middle of the discovery process. The Northern District of Indiana denied a motion to make a party redo its review with TAR after it had already performed keyword searches, and let it proceed by applying TAR to a set culled down through the use of the keyword searches, but the District of Nevada stated that it was not a best practice to use TAR on documents found with the use of traditional search terms. Judge Peck his Rio Tinto decision did allow this approach when it was specified in an initial protocol, as did the Middle District of Tennessee.

Judge Peck recommended the disclosure of training seed sets in Da Silva, as did the Northern District of Indiana - but that court states that Federal Rules of Civil Procedure prevent it from requiring the disclosure of such sets. The Northern District of Indiana rejected the approach of Western District of Louisiana that in using experts to judge the quality of seed sets.

A Virginia State Circuit Court approved a TAR protocol aiming at 75% recall (or getting 3/4 of the total responsive documents.), as did the U.S. District Court for the Central District of California.

The Primer also notes that the Federal Trade Commission and the Antitrust Division of the Department of Justice have approved the use of TAR.