Magistrate Judge Peck Addresses TAR, Provides Insight on Important Issues

Rio Tinto PLC v. Vale S.A., —F.R.D.—, 2015 WL 872294 (S.D.N.Y. Mar. 2, 2015)

Taking up the topic of technology-assisted review (“TAR”), Magistrate Judge Andrew Peck’s most recent opinion declares that “it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it.” Despite this, there remain open issues surrounding the use of TAR, including, as Magistrate Judge Peck noted, the question of “how transparent and cooperative the parties need to be with respect to the seed or training set(s).” And, while this opinion did not resolve that question (because the parties in the present case agreed to “a protocol that discloses all non-privileged documents in the control sets”), it does provide some notable commentary on the issue

In this case, Magistrate Judge Peck, recognizing “the interest within the ediscovery community about TAR cases and protocols,” took the opportunity to discuss the hot topic of TAR, and in particular the questions of “seed set transparency” and whether TAR should be held to a higher standard than the use of keywords or manual review. Specifically, on the topic of “seed set transparency,” following his identification of a number of cases that have addressed the use of TAR and his observation that “[i]f the TAR methodology uses ‘continuous active learning’ (CAL) (as opposed to simple passive learning (SPL) or simple active learning (SAL)), the contents of the seed set is much less significant,” Magistrate Judge Peck indicated that, “[i]n any event, while I generally believe in cooperation, requesting parties can insure that training and review was done appropriately by other means, such as statistical estimation of recall at the conclusion of the review as well as by whether there are gaps in the production, and quality control review of samples from the documents categorized as non-responsive.”   Then, following his determination that he need not rule on the question of “seed set transparency” in the present case, Magistrate Judge Peck went on to state that “[o]ne point must be stressed—it is inappropriate to hold TAR to a higher standard than keywords or manual review. Doing so discourages parties from using TAR for fear of spending more in motion practice than the savings from using TAR for review.”

A full copy of the court’s opinion, including the parties’ agreed protocol, is available here.