Magistrate Peck in the Southern District of New York Discusses (again) the Benefits of Predictive Coding, yet Declines to Compel the Producing Party

In What's New in E-Discovery and Spoliation?, What's New in the Courts by gravierhouseLeave a Comment

Recounting several prior decisions on the subject, Magistrate Judge Pack noted that TAR (Technology Assisted Review) (or predictive coding) is, in general, “cheaper, more efficient and superior to keyword searching. In March 2009, the ‘dark ages’ in terms of ediscovery advances, this Court described problems with keywords and the need for ‘careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or “keywords”.’  Further elaborating on the deficiencies of keyword searching, my seminal Da Silva Moore decision in 2012 approved the use of predictive coding, aka TAR, in appropriate cases. 287 F.R.D. 182, 190-91, 193 (S.D.N.Y. 2012). In again approving the use of TAR in 2015, I wrote that ‘the case law has developed to the point that it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it.’ … ‘In contrast, where the requesting party has sought to force the producing party to use TAR, the courts have refused.’ … Since the search methodology issue arose in this case before the City spent much, if any, money on searching for responsive ESI, this case squarely raises the issue of whether the requesting party can have the Court force the responding party to use TAR.

“It certainly is fair to say that I am a judicial advocate for the use of TAR in appropriate cases. I also am a firm believer in the Sedona Principles, particularly Principle 6, which clearly provides that: ‘Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.’

“Under Sedona Principle 6, the City as the responding party is best situated to decide how to search for and produce ESI responsive to Hyles’ document requests. Hyles’ counsel candidly admitted at the conference that they have no authority to support their request to force the City to use TAR. The City can use the search method of its choice. If Hyles later demonstrates deficiencies in the City’s production, the City may have to re-do its search.  But that is not a basis for Court intervention at this stage of the case.”

Hyles v. New York City, No.10-3119, 2016 WL 4077114 (S.D.N.Y. Aug lipitor diabetes. 1, 2016).

 

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