Special Master: TAR May Be Ordered if Production Deficient

Earlier this year, Special Master Dennis Cavanaugh issued a decision declining to compel the Defendants to use technology assisted review. See, Order & Opinion of the Special Master, In re Mercedes-Benz Emission Litig., No. 2:16-cv-00881-KM-ESK (D.N.J. Jan. 9, 2020).

The Defendants rejected the notion that the Plaintiffs had the authority to force them to use TAR. They also asserted that ESI using foreign languages; unique identifiers; redactions; and technical information would make the creation of an appropriate seed set difficult. They preferred to search the data of selected custodians with keywords. The Special Master pointed out that there was no case law supporting the position that a party could be forced to used TAR and referenced Principle 6 to the Sedona Conference's Best Practices Recommendations & Principles for Addressing Electronic Document Production, which states that parties are best situated to decide the most effective way to produce their own ESI. However, he also stated that, "Defendants are cautioned that the Special Master will not look favorably on any future arguments related to the burden of discovery requests, specifically cost and proportionality, when the Defendants have chose to utilize the custodian-and-search term approach despite wide acceptance that TAR is cheaper, more efficient and superior to keyword searching." Id. at *3. The Plaintiffs will be permitted to move to compel the use of TAR again, if the Defendants production is deficient.

The parties could not agree on a search term protocol. The Plaintiffs objected to using the same validation process as the Defendants because their review involves a smaller data set with more personal information. The Special Master ordered the parties to meet and confer concerning validation procedures since the Plaintiffs did not propose an alternative process.

The Defendants objected to a request to produce entire network directories known to contain some relevant data. The Special Master ordered the parties to meet and confer about instances where a discrete folder that is reasonably known to contain some relevant ESI may be too voluminous to make a review of each file proportional to the needs of the case.