EEO Roundup: E-Discovery Search Method Can’t Be Compelled by Requesting Party

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.

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