Important S.D.N.Y. Ruling on Ordering the Use of TAR

This month, Magistrate Judge Andrew Peck of the S.D.N.Y. issued an important decision on the use of Technology Assisted Review, or predictive coding. In Hyles v. New York City, 10 Civ. 3119 (S.D.N.Y.), Judge Peck denied the plaintiff's application to force the defendant to use TAR even though he acknowledged that, "TAR is cheaper, more efficient and superior to keyword searching". As previously noted on this blog, Judge Peck issued Da Silva Moore v. Publicis Groupe & MSL Group, one of the first judicial decisions to approve the use of TAR. However in this recent decision, Judge Peck rules that Sedona Principle 6, which states that parties are best able to judge for themselves which technologies are best for the preservation and production of ESI, should supersede the obvious advantages of TAR.

It should be noted that this is an employment discrimination suit. The Review was staged, beginning first with only 9 custodians, and then if necessary, only expanding to an additional 6. Presumably very large amounts of ESI are not involved.

Judge Peck closed his decision by noting that it's possible as TAR becomes more widely used, it will be unreasonable for a party to decline to use it in the electronic discovery process.

Exterro's Simplified E-Discovery Case Law Database

There is now an interesting alternative to K&L Gates well-known database of electronic discovery case law, which was the tip of the night for June 14, 2015, Exterro has posted "The Simplified E-Discovery Case Law Library" , at http://www.exterro.com/case-law-library/ . Exterro profiles notable cases on the home page for the Library, and also provides subgroups of case on key topics:

Recent Case Law

New Data Types

Proportionality

Reasonableness

Exterro's case summaries are very short, and have an appealing format. The summaries begin with a one or two sentence description of why the decision is important. This is followed by an overview of the facts and then a list of the key rulings in the case.

Beware however - this is not the extensive resource that K&L Gates' database is. There are no summaries at all for key cases such as Zubulake v. UBS Warburg and Da Silva Moore v. Publicis Group . When you search for 'predictive coding' only the In re: Biomet M2a Hip Implant Prods. decision comes up. Nothing is returned for 'technology assisted review' at all. There does however seem to be a large number of profiles of decisions issued this year in the post-FRCP amendment period.

When Does a Parent Have Control? In re Uranium Antitrust Litigation

In re Uranium Antitrust Litigation, 480 F. Supp. 1138 (N.D. Ill. 1979), is a widely cited case in which a federal court set forth a standard as to when a U.S. company is required to produce documents from a foreign subsidiary. The standard is clear when the parent owns more than 50% of a subsidiary's stock, but the parent can also exercise sufficient control in other circumstances. Judge Marshall ruled that:

". . . the issue of control is more a question of fact than of law, and it rests on a determination of whether the defendant has practical and actual managerial control over, or shares such control with, its affiliate, regardless of the formalities of corporate organization.

Once personal jurisdiction over the person and control over the documents by the person are present, a United States court has power to order production of the documents. The existence of a conflicting foreign law which prohibits the disclosure of the requested documents does not prevent the exercise of this power."

With respect to a Canadian corporation that both owned 43.8% of shares in a Canadian business that kept its own books and held separate corporate meetings, and also wholly owned other Canadian, Australian and American subsidiaries, the Court found that it had control over the responsive documents from the latter but not the former.