Litigants often disagree about which method of identifying potentially responsive electronically stored information (“ESI”) is best.  Specifically, the use of keywords versus technology assisted review (“TAR”)* is typically the topic of the debate.  In deciding these disputes, Judges have seemingly embraced TAR as preferable, but stop short of mandating TAR’s use, citing to Principle 6 of The Sedona Principles (“Principle 6”) (“[r]esponding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own [ESI]”).

Three federal decisions addressing the topic of a litigant’s methodology for determining responsiveness are worth discussion.**

In Hyles v New York City, Judge Peck of the Southern District of New York addressed the use of keywords versus TAR for identifying potentially responsive documents (10CIV3119ATAJP, 2016 WL 4077114 [SDNY Aug. 1, 2016]).  Judge Peck acknowledged that, “TAR is cheaper, more efficient and superior to keyword searching,” but, in line with Principle 6 stopped short of ordering counsel to use TAR, and allowed the litigants to choose their own methodology.   Despite Judge Peck’s view of TAR as superior to keyword searches, he stated that, “the standard is not perfection, or using the ‘best’ tool, but whether the search results are reasonable and proportional” (citing to FRCP 26(g)(1)(B)).

Four years later, Judge Cavanaugh of the New Jersey District Court, made similar observations in In re Mercedes-Benz Emissions Litigation (Case No.: 2:16-cv-881 (KM) (ESK) [D.N.J. Jan. 8, 2020]).  In the Mercedes-Benz Litigation, Plaintiffs requested the Court compel Defendants to use TAR rather than search terms to identify potentially responsive documents.  Defendants argued the use of TAR was not appropriate due to “unique issues” that would adversely affect “an appropriate and effective seed set.”  Judge Cavanaugh, citing Hyles, noted TAR’s superiority to keyword searching but, like Judge Peck and Principle 6, recognized the responding party is in the best position to determine its own responsiveness methodology.

However, Judge Cavanaugh’s allowance came with two distinct caveats to Defendants.  First, if Defendants chose to utilize the keyword approach, the Court noted it would “not look favorably on any future arguments related to burden of discovery requests, specifically cost and proportionality” due to the “wide acceptance that TAR is cheaper, more efficient and superior to keyword searching.”  Second, that his denial was “without prejudice to revisiting [the] issue if Plaintiffs contend[ed] that Defendants’ actual production [was] deficient.”  Although Judge Cavanaugh did not compel Defendants’ use of TAR, he provided two incentives for its use.

Most recently, in Livingston v City of Chicago, (16 CV 10156, 2020 WL 5253848 [N.D. Ill. Sept. 3, 2020]), the Plaintiffs sought to compel the Defendant to use “keyword searches to identify responsive ESI” or, in the alternative for use of TAR on the entire collection.***  In support of their position Plaintiffs argued that, “TAR is a culling tool rather than a method of responsiveness review” and “attorney reviewers [would] improperly train the TAR tool by making incorrect responsiveness determinations.” Judge Kim was not persuaded.  Rather, the Judge noted that the use of TAR was both reasonable and proportional to the needs of the case satisfying FRCP 26 and, citing to Principle 6, followed the trend among federal Judges that the responding party is best situated to decide the best methodology for determining responsiveness.

While Judges may be reluctant to order the use of TAR, recent decisions demonstrate judicial support, economic benefits, and efficiency of TAR.  And so, litigants should consider learning about TAR and employing TAR in their e-discovery workflows.