A Responding Party Cannot be Forced to Use Technology Assisted Review (Predictive Coding)

Hyles v. New York City, 10 Civ. 3119 (AT)(AJP) (S.D.N.Y. Aug. 1, 2016)

In this case, the court addressed the question of whether the City could be “forced” to use technology assisted review (predictive coding) to identify discoverable information when the City itself preferred to use keyword searching. “The short answer [was] a decisive ‘NO.’”

After consulting with an e-discovery vendor, Plaintiff’s counsel in this case “proposed that the City should use TAR as a ‘more cost-effective and efficient method of obtaining ESI from Defendants.’” “The City declined, both because of cost and concerns that the parties, based on their history of scope negotiations, would not be able to collaborate to develop the seed set for a TAR process.”  The issue was referred to Magistrate Judge Andrew Peck for resolution.

Despite acknowledging the truth of Plaintiff’s assertions that in general “TAR is cheaper, more efficient and superior to keyword searching,” and that “parties should cooperate in discovery,” the court ultimately concluded that the “[c]ooperation principles … do not give the requesting party, or the Court, the power to force cooperation or to force the responding party to use TAR.” Further, the court indicated its support for Sedona Principle 6, which provides that “[r]esponding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information” and also counseled that while Plaintiff “may well be correct that production using keywords may not be as complete as it would be if TAR were used, the standard is not perfection, or using the ‘best’ tool, but whether the search results are reasonable and proportional.” (Citations omitted.)

Accordingly, the court concluded:

To be clear, the Court believes that for most cases today, TAR is the best and most efficient search tool. That is particularly so, according to research studies (cited in Rio Tinto), where the TAR methodology uses continuous active learning (“CAL”), which eliminates issues about the seed set and stabilizing the TAR tool.  The Court would have liked the City to use TAR in this case.  But the Court cannot, and will not, force the City to do so.  There may come a time when TAR is so widely used that it might be unreasonable for a party to decline to use TAR.  We are not there yet.  Thus, despite what the Court might want a responding party to do, Sedona Principle 6 controls. Hyles’ application to force the City to use TAR is DENIED.”

However, the court’s opinion did indicate that if Plaintiff “later demonstrates deficiencies in the City’s production, the City may have to re-do its search.”

A full copy of the court’s opinion and order is available here.