Another Court Declines to Force A Party To Use TAR

Catalyst_Blog_TARYou may recall that, in an opinion issued last August, Hyles v. New York City, U.S. Magistrate Judge Andrew J. Peck denied the plaintiff’s request to force the defendant to use technology assisted review instead of keywords to search for relevant documents and emails. Now, another court has followed suit, similarly concluding that it was without legal authority to force a party to use a particular method of e-discovery search.

In the Aug. 1 Hyles decision, attorneys for Pauline Hyles, a black female who is suing the city for workplace discrimination, had sought to force the city to use TAR, arguing it would be more cost efficient and effective than keyword searches. But even though Judge Peck agreed with Hyles’ attorneys “that in general, TAR is cheaper, more efficient and superior to keyword searching,” he concluded that the party responding to a discovery request is best situated to choose its methods and technologies and that he was without authority to force it to use TAR.

(See our prior posts about Hyles at Bloomberg Law’s Big Law Business and at this blog.)

This latest ruling was issued Oct. 14 by U.S. Magistrate Judge Sallie Kim in the Northern District of California. It came in products liability litigation against Pfizer Inc. related to its erectile dysfunction drug Viagra.

The plaintiffs asked the court to order Pfizer to use TAR to help identify responsive documents. They argued that TAR is a more sophisticated tool than the traditional search term or search query approach, and that using TAR would save time and money for both sides.

But Pfizer wanted to use search terms to identify potentially relevant documents. It described its preferred methodology as an iterative process in which it would test search terms and validate them using rigorous sampling of potentially responsive documents. Here is how the court described it:

Pfizer tests and validates a number of search terms by applying those terms to a sample set of documents, reviewing the documents for responsiveness, and verifying that the search terms yield high rates of response. In Pfizer’s proposed process, the parties then exchange lists of proposed search terms. Pfizer states that it will agree to use any of the proposed search terms that appear on both parties’ lists. Pfizer will then use a sampling of the documents that do not contain the parties’ agreed terms to determine the responsiveness rates of the remaining proposed search terms on Plaintiffs’ list. In Pfizer’s proposed process, the parties then negotiate which additional search terms, if any, Pfizer will agree to use, based upon the previous searches and their results.

In ruling for Pfizer, Judge Kim noted that the plaintiffs did not cite to any case law in support of their proposal to require Pfizer, over its objection, to use TAR. Further, at the hearing on the motion, plaintiffs conceded that no court has ordered a party to engage in TAR over the party’s objection.

Agreeing with Judge Peck’s reasoning in Hynes, Judge Kim reiterated his conclusion that the responding party is the one best situated to decide how to search for and produce documents responsive to discovery requests.

The Court finds Hyles well-reasoned. Even if predictive coding were a more efficient and better method, which Pfizer disputes, it is not clear on what basis the Court could compel Pfizer to use a particular form of ESI, especially in the absence of any evidence that Pfizer’s preferred method would produce, or has produced, insufficient discovery responses.

Read the full ruling here.

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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.