On September 3, 2020, in Livingston v. City of Chicago, No. 16-cv-10156 (N.D. Ill. Sep 3, 2020) Magistrate Judge Young B. Kim from the Northern District of Illinois denied plaintiffs’ motion to compel the defendant to use a particular methodology for identifying responsive electronically stored information (ESI). The court held that it was appropriate for the responding party to perform search term culling prior to predictive coding, and that it is not necessary for parties to negotiate detailed TAR protocols in advance. The opinion cites and supports Sedona Principle 6 that "[r]esponding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own [ESI]." The Sedona Principles, Third Edition, 19 SEDONA CONF. J. 1, Principle 6.
The initial discovery dispute concerned what method to employ for the collection and searching of the defendant’s ESI. Id at 1. The court had earlier issued an order requiring the defendant to retain an outside vendor to export emails from a targeted date range, and then apply the plaintiffs’ keyword search terms to identify the document universe. Id at 2. The defendant reported that the collection and searching process resulted in 192,000 unique emails, or approximately 1.3 million pages of documents. Id. The defendant indicated to the court its intention to use TAR to identify responsive documents for production. Id. The plaintiffs objected, claiming that this approach could exclude responsive documents and was inconsistent with the court’s previous discovery order. Id. If the defendant was permitted to use TAR, plaintiffs argued, the court should adopt their protocol, which would require the defendant to use TAR on the entire ESI collection without advance search term culling. Id at 3. The defendant countered by arguing that the previous discovery order did not define a particular methodology for the responsiveness or privilege review and that the federal rules “impose no obligation on the responding party to conduct its responsiveness review in a manner dictated by the requesting party.” Id.