Magistrate Judge Andrew J.
Peck’s recent decision in Rio
Tinto PLC v. Vale S.A.,
S.D.N.Y., No. 14 Civ. 3042 (RMB)(AJP) (March 2, 2015),
recognizes disclosure of non-responsive documents is not a
per se requirement in cases where TAR is
used. This dicta in the
opinion reflects an important evolution in Judge Peck’s
jurisprudence on this issue and generally in the case
law.
Three years ago, in
Da Silva Moore v.
Publicis Groupe & MSL Grp., 287 F.R.D. 182
(S.D.N.Y. 2012) (Peck, M.J.), aff’d, 2012 WL 1446534 (S.D.N.Y. Apr.
26, 2012), Judge Peck authored the first decision approving the
adoption of a detailed TAR protocol. TAR, or
Technology Assisted Review, is a means of combining human knowledge
with technology to make discovery more efficient and cost
effective. TAR begins with a subject matter expert
coding documents (known as seed or training sets) to calibrate the
computer algorithm. Once the algorithm is sufficiently
trained, it is run across the entire universe of collected documents
to categorize them as relevant or non-relevant. Various
steps can then be taken to validate the accuracy of the results and
to further process the documents to meet a party’s discovery
obligations. 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.”
Rio Tinto PLC, at *2. It is no
longer a question of if TAR can be used to efficiently manage the
burdens of large-scale eDiscovery; but rather, whether TAR protocols
are necessary and if so, what degree of transparency is
required.
As Judge Peck
observes, “[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).” Id. at *4. After
reviewing the case law on this point, Judge Peck concludes that the
courts “are split and debate in the discovery literature is robust”
when parties disagree about the level of transparency required for
TAR’s use. Id. at *5.
In Da Silva
Moore, Judge Peck noted a lack of unanimity on the topic
while favoring enhanced cooperation and increased transparency
between the parties:
While not all
experienced ESI counsel believe it necessary to be as transparent as
MSL was willing to be [by disclosing all non-privileged control set
documents], such transparency allows opposing counsel (and the
Court) to be more comfortable with computer-assisted review,
reducing fears about the so-called “black box” of the
technology. This Court highly recommends that
counsel in future cases be willing to at least discuss, if not agree
to, such transparency in the computer-assisted review process.
Da Silva
Moore, at 192. However, in
Rio Tinto PLC, Judge Peck’s stance towards seed
set transparency requirements appears to have
evolved. While still professing to be a general
advocate of cooperation, Judge Peck highlights the existence of
other viable tools that can be used in lieu of transparency
requirements:
[R]equesting
parties can insure that training and review was done appropriately
by other means, such as statistical estimation of recall at the
conclusion of the review as well as by whether there are gaps in the
production, and quality control review of samples from the documents
categorized as non-responsive.
Rio Tinto
PLC, at 6. This decision validates verification
measures producing parties may offer as an alternative to opposing
party requests for production of non-responsive seed set
documents. When parties select a TAR service
provider and review team, it is important to ensure they have
experience with execution of and potential disclosure of these
measures. In Rio Tinto PLC, Judge
Peck does “not rule on the need for seed set transparency . . .
because the parties agreed to a protocol that discloses all
non-privileged documents in the control sets.”
Id. Immediately after acknowledging
this, Judge Peck succinctly summarizes the key point underpinning
his apparent skepticism towards seed set transparency
requirements. “One point must be stressed – it is
inappropriate to hold TAR to a higher standard than keywords or
manual review.”
Id. The implications of
those 20 words for TAR protocols in general and for seed set
transparency disputes in particular cannot be ignored.
In a traditional search term and human review, the producing
party has no obligation to produce non-responsive documents.
Holding a TAR review to the same standards precludes any
argument that the producing party has an obligation to produce
non-responsive documents; regardless of whether said documents are
part of seed or training sets.
This case is an important development in
TAR. Requesting parties have used the Da
Silva Moore decision and comments by Judge Peck to
suggest that TAR may not be used in a matter without allowing a
requesting party input on tool selection, workflow and most
importantly, review of non-responsive documents as part of the
crafting of an agreed upon, complex and detailed TAR
protocol. This decision, while still advocating
for cooperation, moves the law closer to Sedona Principle 6 that
states “[r]esponding parties are best situated to evaluate the
procedures, methodologies, and technologies appropriate for
preserving and producing their own electronically stored
information.” The Sedona Conference, The Sedona Principles:
Best Practices Recommendations & Principles for Addressing
Electronic Document Production ii (Jonathan M. Redgrave
et al. eds., 2nd ed. 2007). This permits a party’s
decision whether or not to use TAR to be based on the “just, speedy,
and inexpensive determination of every action and proceeding”
precepts enshrined in the first rule of the Federal Rules of Civil
Procedure, rather than a deliberation over the worth of entering
into a potentially Faustian bargain. |