Another Federal Decision Acknowledges that TAR Beats Manual Review

In the annals of case law about e-discovery and technology assisted review (TAR), Malone v. Kantner Ingredients will be only a footnote. In fact, were it not for a footnote, the case would barely warrant mention here.

This blog has chronicled the increasing judicial acceptance of TAR, starting with U.S. Magistrate Judge Andrew J. Peck’s seminal 2012 opinion in Da Silva Moore v. Publicis Groupe, which was the first to approve TAR, and continuing through to Judge Peck’s recent opinion in Rio Tinto PLC v. Vale SA, which declared, “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.”

Still, however, the case law on TAR remains sparse and the judges who have explicitly expressed opinions on it are fairly few. While we like to believe that Judge Peck is correct in his assessment that courts will permit TAR, it is always reassuring when another judge weighs in its favor.

Which brings us back to Malone and its footnote. The context was a discovery dispute, the latest in a protracted series of discovery disputes in the case stretching back over two years.

The plaintiffs brought a motion to penalize defendants for failing to produce all documents responsive to their discovery requests. Plaintiffs’ basis for the motion was that their forensics expert conducted a keyword search of an imaged copy of a defendant’s email server and found some responsive documents that the defendant had not previously disclosed.

The plaintiffs’ motion asked the court to order defendants to reimburse them for the cost of work performed by their forensics expert and to explain why they failed to comply with the court’s prior discovery orders.

U.S. Magistrate Judge Cheryl R. Zwart of the District of Nebraska saw nothing in plaintiffs’ allegations to justify the reimbursement they requested. All that plaintiffs had alleged was that the defendants made a mistake in their own review — and mistakes are bound to happen in manual review, the judge said.

At most, the plaintiffs offered evidence of mistakes made during defense counsel’s 2012 manual review of the electronic files. Manual review is still considered by many as the “gold standard” for electronic document review. But human error is common when attorneys are tasked with personally reviewing voluminous electronically stored information. … The fact that defense counsel may have made mistakes does not warrant imposing sanctions — particularly where the plaintiffs now have full access to the server imaging.

Here, at last, is where we find the fabled footnote. It was dropped right in the middle of the above-quoted text.  It says simply this:

Predictive coding is now promoted (and gaining acceptance) as not only a more efficient and cost effective method of ESI review, but a more accurate one. Nicholas Barry, Man Versus Machine Review: The Showdown Between Hordes of Discovery Lawyers and A Computer-Utilizing Predictive-Coding Technology, 15 Vand. J. Ent. & Tech. L. 343 (2013); Maura R. Grossman & Gordon V. Cormack, Technology-Assisted Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review, 17 Rich. J.L. & Tech. 11, P 5 (2011).

Or to paraphrase, if I may: TAR works better than manual review. Had defense counsel used TAR in the original review of the ESI, then perhaps these documents might never have been overlooked and we wouldn’t be here today discussing this unnecessary motion.

There is another footnote worth noting in the case. It goes to the lack of cooperation among the parties and the implication’s for plaintiffs’ reimbursement request. In this footnote, Judge Zwart noted:

At the close of the hearing, Plaintiffs’ counsel stated that the parties did not discuss how to collect and produce ESI for this case at the outset. Had those discussions occurred, the court believes all parties’ discovery costs would have been minimized. Under such circumstances, imposing some share of the discovery cost on the plaintiffs is reasonable.

To paraphrase again: If you aren’t going to cooperate to keep costs to a minimum, then don’t come to me asking for reimbursement of the costs you could have avoided.

In the scheme of things, Malone is not a major case. The pertinent language was merely dictum in a footnote. Even so, it is one more case we can now add to the list of those in which the judge acknowledged the effectiveness of using TAR in e-discovery review.

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About Bob Ambrogi

Bob is known internationally for his expertise in the Internet and legal technology. He held the top editorial positions at the two leading national U.S. legal newspapers, the National Law Journal and Lawyers USA. A long-time advisor to Catalyst, Bob now divides his time between law practice and media consulting. He writes two blogs, LawSites and MediaLaw, co-authors Law.com's Legal Blog Watch, and co-hosts the weekly legal-affairs podcast Lawyer2Lawyer. A 1980 graduate of Boston College Law School, Bob is a life member of the Massachusetts Bar Foundation and an active member of the Massachusetts Bar Association, which honored him in 1994 with its President's Award.