Last week the Commercial Division of the New York State Supreme Court implemented a new rule designed to encourage parties to use technology assisted review. Rule 11-e concerns responses and objections to document requests. As the request for public comment on the proposed amendment indicated the rule has been modified to include this language:
The parties are encouraged to use the most efficient means to review documents, including electronically stored information ("ESI"), that is consistent with the parties' disclosure obligations under Article 31 of the CPLR and proportional to the needs of the case. Such means may include technology-assisted review, including predictive coding, in appropriate cases.
The Commercial Division Advisory Council's memorandum on the proposed rule (available at the above link) notes that parties are also encouraged to use email threading; near duplicate detection, and clustering in addition to TAR to speed up document review and reduce its cost.
The memo specifies that it is the producing party which is best suited to determine whether or not it should use TAR. While the court notes that a requesting party can challenge the method of review, and a judge will retain oversight of discovery, it cites a decision by a federal court strongly endorsing the producing party's discretion. “Unless [the responding party’s]choice is manifestly unreasonable or the requesting party demonstrates that the resulting production is deficient, the court should play no role in dictating the design of the search.” Mortg. Resolution Servicing, Inc. v. JP Morgan Chase Bank, N.A., 15-CV-0293,2017 WL 2305398, at *2 (S.D.N.Y. May 18, 2017).
No preference is given to a particular kind of technology assisted review. "[T]he appropriateness of a given methodology can only be determined in the context of the particular case and the data set to be reviewed." The Council points out that the preamble to the rules directs, "proportionality in discovery".