Important new court opinion addresses TAR

24 September 2020 Reed Smith Client Alerts

Page d'accueil Perspectives Important new court opinion addresses TAR

In a recent opinion, the Northern District of Illinois supported the use of predictive coding after search term culling and reinforced the principle that it is not necessary for parties to negotiate detailed technology assisted review (TAR) protocols in advance.

Auteurs: Craig W. Chaney David R. Cohen

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.

Judge Kim agreed with the defendant that the previous discovery order did not dictate the review methodology for responsiveness and privilege review, but rather resolved issues concerning the method for collecting and identifying the universe of documents. Id at 6. Additionally, the court rejected the plaintiffs proposed TAR protocol noting that, “[w]hile the court does not discount the possibility that using TAR at the onset might reveal more responsive documents overall, based on the number of documents that were discarded using the plaintiffs’ proposed search terms, pre-TAR culling will achieve the best possible review in this case. In other words, it satisfies the reasonable inquiry standard and is proportional to the needs of this case under the federal rules.” Id at 7. After citing Sedona Principle 6, the court noted that the “plaintiffs’ insistence that the defendant must collaborate with them to establish a review protocol and validation process has no foothold in the federal rules governing discovery” and that using TAR on the entire ESI collection would be “wasteful and unduly burdensome” and cause further delay. Id at 8. Accordingly, the plaintiffs’ motion to compel was denied.

This case provides another helpful precedent for litigation parties looking to cut discovery costs with the help of advanced technology. The Reed Smith Records & E-Discovery (RED) practice group has been employing TAR in multiple cases and investigations for more than a decade, helping clients to achieve significant cost savings.

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