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October 26, 2016
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November 17, 2016

New Court Decision Refuses to Require the Use of Technology-Assisted Review

The rise of technology-assisted review (TAR) in eDiscovery has raised questions about whether courts should require responding parties to use TAR to identify responsive documents. Studies repeatedly confirm that TAR has the potential to expedite and improve the accuracy of the search and review process as compared to linear document review. Counsel and clients have additionally gravitated toward TAR for its utility in locating key documents needed to establish claims or defenses. These byproducts of TAR – simplifying the process and identifying strategic information – make this methodology a particularly attractive option for conducting discovery.

In light of these benefits, requesting parties are now increasingly seeking to have responding parties use TAR as a search tool. In fact, requesting parties have even sought to compel the use of TAR over the objection of the responding party. This has forced courts to decide whether a responding party should be coerced into using TAR when it has selected another methodology (such as search terms) that is arguably not as effective as TAR. Despite the benefits of TAR, courts have generally sided with responding parties, affirming their right to select a search methodology of its choice.

Viagra Confirms Responding Parties’ Right to Choose a Search Methodology

This issue was on display just this month in In re Viagra (Sildenafil Citrate) Products Liability Litigation, No. 16-md-02691-RS (SK) (N.D. Cal. Oct. 14, 2016). In Viagra, the plaintiffs sought an order requiring the defendant (Pfizer) to use TAR to identify and produce information responsive to their document requests. In support of its motion, the plaintiffs cited the cost and time benefits of TAR, implicitly arguing that such benefits trumped Pfizer’s right to select its own search methodology.

The court, however, refused to consider such a request at that stage of discovery. Citing Hyles v. New York City, 2016 WL 4077114 (S.D.N.Y. Aug. 1, 2016), the court held that Pfizer was free to use its selected methodology (search terms) to respond to the plaintiffs’ discovery. Drawing on the language of Hyles, the court reasoned that “the responding party is the one best situated to decide how to search for and produce ESI responsive to discovery requests.’” Only if Pfizer’s production were proven to be deficient could the plaintiffs then revisit the use of TAR.

The Hyles case is likewise instructive on this issue. In Hyles, U.S. Magistrate Judge Andrew Peck also declined to order a responding party to use TAR. While Judge Peck confirmed he is a “judicial advocate” of TAR and touted its benefits, he refused to order its use by the defendant. Relying on Sedona Principle Six (published by The Sedona Conference), Judge Peck held that the selection of a particular search methodology remains the choice of the responding party. Sedona Principle Six, which underlies both Viagra and Hyles, provides that “[r]esponding parties are best situated to evaluate the procedures, methodologies, and techniques appropriate for preserving and producing their own electronically stored information.” It encapsulates the traditional practice of allowing the responding party to determine how to proceed with the production of responsive information.

Lessons on TAR Use from Viagra

After the holdings from Viagra and Hyles, there should be little doubt that the responding party has the right to select the methodology of its choice to conduct discovery. Given this reality, requesting parties who wish to have TAR used by responding parties should perhaps seek a cooperative approach in accomplishing this objective. Cooperation – and not coercion – in discovery will likely yield more benefits to the requesting party in this regard. Indeed, one of the main reasons in Hyles that the responding party turned away from TAR was the acrimony anticipated with the requesting party over developing a TAR workflow. If TAR is to be “widely used” in the future as envisioned by Judge Peck, cooperation will be needed by both sides in discovery.

Philip Favro
Philip Favro
Philip Favro acts as a trusted advisor to organizations and law firms on issues surrounding discovery and information governance. Phil provides guidance on data preservation practices, litigation holds, data collection strategies, and ESI search methodologies. In addition, he offers direction to organizations on records retention policies and the need to manage dynamic sources of information found on smartphones, cloud applications, and social networks. Phil is available to serve as a special master on issues related to electronic discovery. Phil is a nationally recognized thought leader and legal scholar on issues relating to the discovery process. His articles have been published in leading industry publications and academic journals and he is frequently in demand as a speaker for eDiscovery education programs. Phil is a member of the Utah and California bars. He actively contributes to Working Group 1 of The Sedona Conference where he leads drafting teams and serves as the Steering Committee project manager. Prior to joining Driven, Phil practiced law in Northern California where he advised a variety of clients regarding business disputes and complex discovery issues. He also served as a Judge Pro Tempore for the Santa Clara County Superior Court based in Santa Clara, California.
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