Earlier this year, I recognized the ten-year anniversary of the landmark Da Silva Moore case that was the first court approval of predictive coding by the now retired New York Magistrate Judge Andrew J. Peck (with whom I have the pleasure to discuss case law monthly for EDRM). But it may be another case in which he ruled that may be even more important to enable legal professionals to justify their approach to predictive coding/technology assisted review (TAR).
Addressing Why TAR is Held to Such a High Standard of Verification
In eDiscovery Today’s 2022 State of the Industry report (summarized here), only about a quarter of 281 respondents (25.9%) said they use predictive coding most of the time. One of the biggest reasons I’ve heard again and again why more legal professionals don’t use TAR is that requesting parties tend to push for more transparency and verification with TAR than they do with keyword searching, even though many legal professionals don’t know how to properly conduct keyword searching either (here’s one notable example how bad many of them are at it).
Maura R. Grossman, J.D., Ph.D. and Gordon V. Cormack, Ph.D. referred to that in their paper titled The eDiscovery Medicine Show, which was released last year and is available here when they referenced the “misconception…that only the TAR tool should be subject to validation, while keyword culling and manual review should be exempt, as they have always been.”
And Judge Peck addressed that in the 2021 State of the Industry report when he responded to a question about why more people aren’t using predictive coding, stating: “Part of the problem remains requesting parties that seek such extensive involvement in the process and overly complex verification that responding parties are discouraged from using TAR.”
Should responding parties expect such involvement in the process? Perhaps this case can address that.
Hyles v. New York City
The case is Hyles v. New York City, which Judge Peck ruled on just over six years ago – on August 1, 2016. What’s one of the reasons I like this case? Honestly, it’s short and to the point. Judge Peck doesn’t exactly keep us in suspense with his ruling when he says in the very first paragraph of the Opinion and Order:
“The key issue is whether, at plaintiff Hyles’ request, the defendant City (i.e., the responding party) can be forced to use TAR (technology assisted review, aka predictive coding) when the City prefers to use keyword searching. The short answer is a decisive ‘NO.’”
“Good night, everybody! Be safe driving home!” Right? Not so fast. Hyles is notable for two reasons: the Judge who made the ruling, and why he made it.
Judge Peck was (and still is) an advocate for TAR
Even before Da Silva Moore, Judge Peck wrote an article in October 2011 (Search, Forward: Will manual document review and keyword searches be replaced by computer-assisted coding?) where he discussed how “many counsel still use the ‘Go Fish’ model of keyword search”, and stated: “In my opinion, computer-assisted coding should be used in those cases where it will help ‘secure the just, speedy, and inexpensive’ (Fed. R. Civ. P. 1) determination of cases in our e-discovery world.”
In Da Silva Moore, Judge Peck stated: “This judicial opinion now recognizes that computer-assisted review is an acceptable way to search for relevant ESI in appropriate cases.”
And, three years later, Judge Peck “doubled down” on court acceptance of TAR in the case Rio Tinto Plc v. Vale S.A. when he stated: “In the three years since Da Silva Moore, 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 Rio Tinto, Judge Peck also cited Dynamo Holdings Ltd. P’Ship v. Comm’r of Internal Revenue where the petitioners requested that the Tax Court let them use predictive coding, noting “[t]he Tax Court’s response to being asked to approve the use of TAR was that courts leave it to the parties to decide how best to respond to discovery requests”.
Given his TAR advocacy in the past, the plaintiff and her counsel must have felt like they had the best judge possible to rule on their request to force the defendant to use TAR when the case was referred to Judge Peck. However, Judge Peck’s citation of Dynamo Holdings above, while supportive of the petitioners’ right to use TAR in that case, was a precursor to how he would rule in this case.
Judge Peck cited Sedona Principle 6 in his ruling
While Judge Peck acknowledged that “Hyles absolutely is correct that in general, TAR is cheaper, more efficient and superior to keyword searching”and reiterated that “[i]t certainly is fair to say that I am a judicial advocate for the use of TAR in appropriate cases”, he also said this:
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.Hon. Judge Andrew Peck in Rio Tinto
Judge Peck also again cited Dynamo Holdings, which included this statement: “[T]he Court is not normally in the business of dictating to parties the process that they should use when responding to discovery.”
As the saying goes, “what’s good for the goose is good for the gander” – in other words, the ability for responding parties to choose their own process for discovery supported by Sedona Principle 6 and Dynamo Holdings applies to using TAR or not using it.
Hyles is Justification for Parties to Decide How to Approach TAR
Since the August 2016 ruling, Hyles has been referenced in several cases since by responding parties looking to either: 1) justify using or not using TAR, or 2) justify how they’re using it. It’s even been referenced in cases where TAR isn’t even being contemplated, like this case last year.
Since Hyles, courts have consistently ruled along the lines of Sedona Principle 6 when disputes regarding the use of TAR have arisen, unless: 1) a deficiency in the process is identified (like this case where a defendant produced more than 3.5 million documents via a TAR process, but only 17% of them, approximately 600,000, were deemed responsive) or 2) the producing party diverges from formal protocol or agreement (like this case, where the Court rejected the defendant’s “unilaterally developed and administered TAR” approach when a protocol existed).
While it’s important to cooperate in discovery, Hyles and Sedona Principle 6 provide a justification for parties to not only use TAR, but also a justification for how they use it (assuming no deficiencies, of course). It’s ironic that a case where TAR wasn’t required may be the best case for parties to reference to justify when and how it’s used.
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