There are lawyers who do not trust, do not understand, or do not want to learn how to use Technology Assisted Review (lovingly known as TAR), in discovery. TAR is a sticky definition, because TAR can be “predictive coding,” or “machine learning,” or “email threading,” or “clustering,” or any other advanced analytics that help lawyers identify relevant electronically stored information. Whether it is continuous active learning or organizing unstructured data, TAR is a catchall term.
That said, many people mean “predictive coding,” when they say TAR.
There have been many incidents over the past decade where one party effectively claims veto power over whether the adverse party can use TAR in identifying responsive ESI.
That is crazy talk.
US Magistrate Judge Elayna Youchah stated the following in a scheduling order:
The Court agrees with Defendant’s position that the Court need not be involved in Defendant’s decision whether to use computer or technology assisted review processes of electronically stored information (“ESI”). Such technology assistance is ordinary, and unless there is a basis to believe that the mechanism used is either purposefully or inherently failing to identify proportional, relevant, and responsive ESI, the Court need not be involved.
Bliss v. Corecivic, Inc., No. 2:18-cv-01280-JAD-EJY, 2021 U.S. Dist. LEXIS 24469, at *2-3 (D. Nev. Feb. 9, 2021).
The issue with using TAR to produce ESI requires first a production be done. The issue then is whether the challenging party can show a production is unreasonable or inadequate. See generally, Terry v. Register Tapes Unlimited, 2018 U.S. Dist. LEXIS 50846, at *6-7 (E.D. Cal. Mar. 26, 2018). Moreover, the main question for producing discovery is one of reasonableness and not perfection. Chen-Oster v. Goldman, Sachs & Co., 285 F.R.D. 294, 306 (S.D.N.Y. 2012), citing The Sedona Conference, The Sedona Conference Database Principles: Addressing the Preservation and Production of Databases and Database Information in Civil Litigation, March 2011 Public Comment Version, at 32.
Parties should cooperate in identifying the scope of discovery, terms to use for searching, relevant individuals, and any other helpful information to identify relevant ESI. However, when the work actually needs to be done, Courts should not be giving thumbs up on a specific technology unless there is an actual dispute.