Category Archives: Case law

Citing TAR Research, Court OKs Production Using Random Sampling

Catalyst_Court_OKs_Production_Using_Random_SamplingCiting research on the efficacy of technology assisted review over human review, a federal court has approved a party’s request to respond to discovery using random sampling.

Despite a tight discovery timeline in the case, the plaintiff had sought to compel the defendant hospital to manually review nearly 16,000 patient records. Continue reading

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. Continue reading

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.” Continue reading

Magistrate Judge Andrew Peck Discusses TAR in the Courtroom

U.S. Magistrate Judge Andrew J. Peck — author of the first-ever court decision approving the use of technology assisted review in e-discovery — was recently a guest on the Legal Talk Network podcast Digital Detectives. Hosts Sharon D. Nelson and John W. Simek, president and vice president of Sensei Enterprises, interviewed Judge Peck about how TAR works, what cases it is suitable for, and how it is being accepted in the courts.

Given Judge Peck’s leadership in broadening the adoption of TAR, we thought his comments would be of interest to readers of this blog. With the gracious permission of Sharon, John and the Legal Talk Network, below is a partial transcript of the show highlighting Judge Peck’s comments on TAR. You can hear the entire program through the Soundcloud player above or at the Legal Talk Network. Continue reading

The Luck of the Irish: TAR Approved by Irish High Court

I do not know if any leprechauns appeared in this case, but the Irish High Court found the proverbial pot of gold under the TAR rainbow in Irish Bank Resolution Corp. vs. Quinn—the first decision outside the U.S. to approve the use of Technology Assisted Review for civil discovery.

The protocol at issue in the March 3, 2015, decision was TAR 1.0 (Clearwell). For that reason, some of the points addressed by the court will be immaterial for legal professionals who use the more-advanced TAR 2.0 and Continuous Active Learning (CAL). Even so, the case makes for an interesting read, both for its description of the TAR process at issue and for its ultimate outcome. Continue reading

TAR in the Courts: A Compendium of Case Law about Technology Assisted Review

Magistrate Judge Andrew Peck

Magistrate Judge Andrew Peck

It is less than three years since the first court decision approving the use of technology assisted review in e-discovery. “Counsel no longer have to worry about being the ‘first’ or ‘guinea pig’ for judicial acceptance of computer-assisted review,” U.S. Magistrate Judge Andrew J. Peck declared in his groundbreaking opinion in Da Silva Moore v. Publicis Groupe.

Judge Peck did not open a floodgate of judicial decisions on TAR. To date, there have been fewer than 20 such decisions and not one from an appellate court.

However, what he did do — just as he said — was to set the stage for judicial acceptance of TAR. Not a single court since has questioned the soundness of Judge Peck’s decision. To the contrary, courts uniformly cite his ruling with approval.

That does not mean that every court orders TAR in every case. The one overarching lesson of the TAR decisions to date is that each case stands on its own merits. Courts look not only to the efficiency and effectiveness of TAR, but also to issues of proportionality and cooperation.

What follows is a summary of the cases to date involving TAR. Each includes a link to the full-text decision, so that you can read for yourself what the court said. Continue reading

Costs of Keyword Searching, Data Analysis, Not Recoverable, Federal Circuit Rules

To what extent can the costs of e-discovery be recovered by a prevailing party in federal court? The U.S. Federal Circuit Court of Appeals has just issued an opinion that provides a detailed analysis of that question, concluding that the answer hinges on which costs fall within a 21st Century definition of “copying.”

In CBT Flint Partners, LLC v. Return Path, Inc., the Federal Circuit considered the extent to which e-discovery costs fall under 28 USC § 1920, the federal statute that lists the costs that can be recovered Continue reading

Redundant and Excessive Search Did Not Warrant Cost Shifting, Court Rules

An attempt by defendants to shift their costs to the plaintiff for searching electronically stored information has been denied by a federal magistrate judge in New York.

Novick v. AXA Network LLC, the defendants argued that they were required to conduct searches that were excessive, duplicative and burdensome. They contended that, under the cost-shifting standard articulated in Zubulake v. UBS Warburg LLC, the plaintiff should be required to pay the $41,000 they incurred in conducting the search.

But U.S. Magistrate Judge Kevin Nathaniel Fox disagreed, concluding that the defendants never got past the threshold issue under Zubulake — establishing that the data was kept in an inaccessible format. Continue reading

Court Refuses to Disqualify E-Discovery Vendor for ‘Switching Sides’ in Case

Can an e-discovery vendor “switch sides” in a case, performing services first for one side and then for the other?

A U.S. magistrate judge has denied a motion seeking to disqualify an e-discovery consulting company for precisely that reason. Finding that the company was never privy to the moving party’s confidential information or litigation strategies, the judge found no reason to disqualify the company from continuing to participate in the case.

The ruling came in the case Gordon v. Kaleida Health, a contentious wage-and-hour class action against a major regional hospital system, filed in 2008 in the Western District of New York. We have twice before written about the case on this blog with reference to the magistrate judge’s recommendation that the parties use predictive coding Continue reading

None of Your Beeswax! (Or, Do I Have to Invite Opposing Counsel to my Predictive Ranking Party?)

When I was a kid, we had a ready retort when people got too personal with their questions or otherwise crossed the line into private territory. “None of your Beeswax,” is what we told them. It was meant to cut off the conversation and usually did. After all, there aren’t too many good comebacks to “None of your Beeswax.” Try saying, “Yes it is my beeswax,” with a straight face. And where do you go from there anyway?

That is essentially what U.S. Magistrate Judge Leslie G. Foschio said to the plaintiffs about predictive coding in the recent case of Gordon v. Kaleida Health (08-CV-378S(F) W.D. NY 2013). The plaintiffs demanded that their experts participate in the predictive coding process and the defense naturally objected. Continue reading