Technology assisted review, or TAR, is generally the best and most efficient search tool for conducting electronic discovery in employment discrimination cases. But neither the requesting party nor a court can force the producing party to use TAR instead of traditional keyword searching.
That’s the conclusion of a federal magistrate in New York in a novel case involving Pauline Hyles, a black city finance employee of West Indian/Guyanese descent who claims she was demoted to a lower-paying position and her old job was given to a white man.
The Aug. 1 decision in Hyles v. New York City is the first to address whether a party seeking e-discovery under the Federal Rules of Civil Procedure can force a responding party who hasn’t yet “spent much, if any, money” searching its computer systems for responsive electronically stored information (ESI) to use TAR—which is also known as predictive coding—rather than traditional keyword searching, Magistrate Judge Andrew J. Peck of the U.S. District Court for the Southern District of New York said.
If that name sounds familiar to you e-discovery junkies, it’s because Peck also authored the seminal 2012 ruling in Da Silva Moore v. Publicis Groupe, which first recognized TAR as an acceptable e-discovery search method.
In Hyles, Peck notes that other courts previously have held that a producing party that already has invested significant money into performing keyword searching can’t be forced to accede to a requesting party’s preference that an electronic records search instead be performed using predictive coding.
But those cases didn’t decide if the requester’s preference could rule the day when expensive keyword searching isn’t already underway or completed.
Faced with that question here, Peck cites the fount of all e-discovery wisdom—the Sedona Principles—for the proposition that the producing party is “best situated” to evaluate and select among alternative methods and technologies for preserving and producing EDI.
The ultimate barometer, he said, isn’t what is the “best tool” for finding EDI, “but whether the search results are reasonable and proportional” under whatever search method/technology is used.
Thus even though Hyles (and the court) would prefer to see the city use TAR in the instant case, the city can’t be forced to do so, Peck ruled.
Bloomberg Law® helps labor and employment law practitioners provide rapid, accurate and complete advice to clients by bringing together trusted, market-leading Bloomberg BNA content like Daily Labor Report® and treatises like Covenants Not to Compete: A State-by-State Survey and The Developing Labor Law, with a fully integrated, innovative legal research platform. Click here to request a free trial.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)