The “Uber” Problem with Self-Destructing Messaging Apps
November 30, 2017
Unfinished Business: A Wish List for New FRCP Amendments
December 28, 2017

Three Key Lessons from New TAR Decision Winfield v. City of New York

It’s not often that a judicial opinion provides instructive guidance on several different discovery issues. When that happens, lawyers should be particularly attentive to the court’s instructions. Such is the case with a new decision from Winfield v. City of New York.

In Winfield, U.S. Magistrate Judge Katharine Parker provided direction on issues ranging from attorney work product and Sedona Principle Six to proportionality and active judicial case management. All of which and more are considered in the context of a challenge to a responding party’s technology-assisted review (TAR) process.

The Discovery Dispute in Winfield

Winfield involves plaintiffs who are seeking redress for alleged discrimination in public housing offered by defendant New York City. To establish their claims, plaintiffs have sought various categories of documents from the city’s housing and planning departments, along with the mayor’s office. Plaintiffs complained that the city has taken a limited view of relevance and also made overly broad privilege designations. Each of these deficiencies, accordingly to plaintiffs, has caused the city’s TAR process to be improperly trained, resulting in relevant information being withheld from production. Plaintiffs sought an order mandating the disclosure of the city’s TAR process, along with categories of documents they argue have been improperly withheld as being nonresponsive or privileged.

In response, the court held that the city’s TAR process was sufficient. After a detailed in camera review, the court explained that the “training and review processes and protocols” the city used to develop its TAR workflow were “far from” being grossly negligent or unreasonable, as plaintiffs asserted. Instead, the court found the seed set to be thoroughly developed, comprised of over 7,200 responsive, non-responsive, and privileged documents taken from judgmental and random samples. The court was also satisfied with the city’s validation process, which complied with TAR “best practices.”

The court did find that the city had made review errors, which resulted in responsive information being withheld from production. Those errors were not “sufficient to question the accuracy and reliability of the City’s TAR process as a whole.” Nevertheless, they apparently justified an order compelling the city to produce 400 nonresponsive documents randomly sampled from its custodians. Such a production order would provide greater “transparency” into the city’s production and allow plaintiffs to ferret out whether there were additional production errors.

Three Key Lessons from Winfield

Winfield is instructive on various topics. In connection with its order, the court emphasized the continuing primacy of Sedona Principle Six in discovery, i.e., that the responding party is best situated to determine how it should search for, review, and produce its responsive information. Judge Parker also highlighted the need to apply proportionality standards and the importance of avoiding a mythical standard of perfection in ESI productions. While these and other principles from the case are significant, three key lessons emerge from Winfield.

     1. Avoid Production of Nonresponsive Documents

The city incurred self-inflicted discovery wounds when it took a restricted view of plaintiffs’ claims. By narrowly construing the scope of relevance, the city withheld various responsive documents from production. After this was revealed, it ultimately led to the unthinkable: the compelled production of hundreds of documents the city deemed nonresponsive. By unreasonably limiting the scope of relevance, the city has now yielded its prerogative to determine the responsiveness of those documents to plaintiffs. To avoid such a scenario, counsel should exercise greater care in evaluating the scope of discovery. This may include adopting a broader understanding of the claims and defenses or, where possible, reaching an agreement with adversaries over the scope of discovery.

     2. Responding Party’s TAR Process is Work Product

The court unequivocally held that the city’s TAR workflow and overall process for document review was work product and therefore protected from disclosure. This ruling is a significant victory for responding parties who have fought for years to obtain an order safeguarding seed sets and related information from production on work product grounds. Responding parties may now withhold such information. Alternatively, they remain free to reveal it in a cooperative discovery environment where it advances their interests.

     3. Be Prepared for Active Judicial Case Management

While recognizing that the judiciary does not wish to become a “super-manager of the parties’ internal review processes,” the court has taken an active role in managing discovery throughout Winfield. Judge Parker has issued numerous rulings and recommendations through formal and informal proceedings. This includes her recommendation that the city use TAR in lieu of manually reviewing all documents in order “to hasten the identification, review, and production of documents responsive to Plaintiffs’ document requests.”

Such a record belies the notion that the court has been a passive judicial observer. Instead, it shows the court has embraced the directive from amended Rule 16 to actively manage the discovery process. Counsel should take note and be prepared for a more active judicial officer who may help guide or even direct the discovery process forward.


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.