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April 23, 2015

Judge Peck’s Latest Word: Revisiting Technology Assisted Review (TAR)

Leading judicial voice in the field of Technology Assisted Review, US Magistrate Judge Andrew Peck, is at it again. Three years after his seminal Opinion asserting that Technology Assisted Review “is an available tool and should be seriously considered for use” in Da Silva Moore v. Publicis Group & MSL Grp., 287 F.R.D. 182 (S.D.N.Y. 2012), aff'd, 2012 WL 1446534 (S.D.N.Y. Apr. 26, 2012), he is revisiting the issue of TAR’s place in the e-discovery landscape in Rio Tinto PLC v. Vale S.A., Case No. 14 Civ. 3042 (Mar. 3, 2015 S.D.N.Y.). Judge Peck took the opportunity in this matter to not just sign off on the parties’ stipulations regarding the use of TAR, but to write an Opinion that furthers the advancement of TAR’s validity and role in the US judicial system, specifically stating that he wrote the Opinion “because of the interest within the ediscovery community about TAR cases and protocols.”

The most obvious sound bite to take from Judge Peck’s Opinion in Rio is that Technology assisted review is now black letter law. “[W]here the producing party wants to utilize TAR for document review, courts will permit it.” Three years after first putting TAR on record with Da Silva Moore, Peck is now able to cite case after case where Judges across the country have affirmed the use of Technology Assisted Review as a valid practice for producing parties. However, the true significance of the Opinion follows the affirmation of TAR as black letter law when Judge Peck discusses the role of transparency, cooperation, and workflow.

Judge Peck quickly moves on from his “black letter law” assertion and dives in to discuss details of TAR that have not yet been settled. In particular he states that “[o]ne TAR issue that remains open is how transparent and cooperative the parties need to be with respect to the seed or training set(s).” He is able to cite an array of cases where decisions are split with regards to transparency and cooperation in TAR matters, ranging from Judge Cote in Fed. Hous. Fin. Agency v HSBC A.A. Holdings, Inc, 11 Civ. 6189, 2014 WL 584300 (S.D.N.Y. Feb. 14, 2014) “requiring transparency and cooperation” to Judge Miller in In re Biomet M2A Magnum Hip Implant Prods. Liab. Litg., No. 3:12-MD-2391, 2013 WL 6405156 (N.D. Ind. Aug. 21, 2013) finding “no authority” requiring the sharing of seed set documents.

He concludes the discussion on Courts’ disparate views on transparency and cooperation with his own commentary[i] on the issue, starting off by saying “[i]n any event, while I generally believe in cooperation, requesting parties can insure that training and review was done appropriately by other means [than disclosing seed sets or control sets]” and lists several examples of such methods. Then he stresses one of the most significant statements in the Opinion: “it is inappropriate to hold TAR to a higher standard than keywords or manual review.” Judge Peck warns of “discouraging parties from using TAR for fear of spending more in motion practice than the savings from using TAR for review.“ The Court now accepts TAR as black letter law, but we need to make sure that they do so in a way that not only legitimizes its use but actually encourages and facilitates its use by producing parties. Technology Assisted Review needs to be accessible and treated just as other accepted forms of culling large data sets for production of responsive material.

Judge Peck also takes particular care to reinforce his holding in Da Silva Moore that the Court’s acceptance of a particular TAR protocol in one matter does not impart any special significance to that workflow, technology or proprietary tool that could be carried over to future TAR matters. Quoting Da Silva Moore, Peck states that his acceptance of the parties’ protocol “does not mean… that the exact ESI protocol approved here will be appropriate in all [or any] future cases that utilize [TAR].” There is not one magic key or path with Technology Assisted Review. Where this is a relatively new technology, the Court should not get in the way of advancements in the technology and tools associated with TAR by prescribing a standard approved protocol in the early stages of its development and growth.

Holding Technology Assisted Review to a standard higher to that of keywords or manual review, requiring disclosure of seed set or training set documents, and forcing judicially approved TAR workflows discourages parties from exploring the TAR option due to fear of perceived additional administrative hoops, expenses, and risk associated with the protocol. The goal of Judge Peck’s Opinion is to quickly move past asserting TARs accepted presence in the current ediscovery landscape and to combat these perceived hurdles to see the door widened in terms of encouraging the use of Technology Assisted Review and broadening the parameters of how it can be successfully executed moving forward.

[i] It is important to note that his commentary is merely just that, as this particular issue is not in front of the Court here because the parties in Rio voluntarily agreed to a protocol that discloses non-privileged control set documents prior to submitting it to Judge Peck.

Kathleen Comey
Kathleen Comey
Kathleen is Driven’s Managed Review Services Consultant. Kathleen provides custom workflows based on tried and tested review procedures that leverage all of the functionality that the ONE eDiscovery Platform has to offer. She began her tenure at Driven as a Litigation Support Consultant, where she became intimately knowledgeable with regards to the ONE Platform, helped develop and refine some of its managed review features, and gained certification in Content Analyst’s Advanced Analytics Certification Program. The combination of her expertise in ONE and advanced analytics functionality, plus her experience managing a wide array of document reviews, leads to heightened efficiencies and high levels of accuracy, consistency, and quality.
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