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.