More than a year ago, Magistrate Judge Andrew Peck of the U.S. District Court for the Southern District of New York issued the first judicial opinion recognizing technology-assisted review (TAR), also referred to as predictive coding or computer-assisted review, as a legitimate discovery tool. Since that opinion, several other cases have demonstrated that not only do courts welcome (or even demand) the use of TAR, but requesting parties may prefer (or demand) that producing parties use it to identify electronically stored information (ESI) for production.
Moreover, there are no reported cases holding that TAR is an illegitimate means of document review, while at the same time a growing corpus of legal and scientific scholarship confirm its superiority over traditional means of ESI review, such as keyword searching and manual linear review. As the cases discussed below suggest, where the results of the application of TAR can be validated satisfactorily through statistical testing, there is no reason to doubt the completeness of the document production.
Email from four key custodians was selected to help form the “seed set.” The parties were to work together to “train” the software and decide upon the appropriate statistical validation criteria. The order further provided that random sampling would be applied for “quality control” and that the defendants would still be able to perform a manual review before producing.
Requesting parties have demanded that producing parties use TAR from the outset to identify relevant ESI. In Kleen Products LLC v. Packaging Corp. of America, the plaintiffs asserted that the defendants’ proposed keyword search would find less than 25 percent of the responsive ESI, while TAR would find 70 percent with no additional cost. The defendants argued that they could employ quality control methods to ensure the necessary degree of accuracy and that given how much work had already been done, additional costs involved in applying TAR would be unduly burdensome. After an evidentiary hearing and several months of negotiation between the parties, the plaintiffs agreed to withdraw their demand.