Bloomberg Law’s combination of innovative analytics, research tools and practical guidance provides you with everything you need to be a successful litigator.
Aug. 2 — A requesting party can't force the use of a specific search protocol for eDiscovery production even if the court agrees the protocol would be cheaper and more efficient, the U.S. District Court for the Southern District of New York held Aug. 1 ( Hyles v. New York City, 2016 BL 248010 S.D.N.Y., No. 10 Civ. 3119 (AT)(AJP), 8/1/16 ).
Magistrate Judge Andrew J. Peck decided that a party can't be forced to use technology-assisted review when it prefers to use keyword searching (12 DDEE 79, 3/1/12) (15 DDEE 86, 3/5/15).
Technology-assisted review is a software tool that allows its users to prioritize or code large electronic document collections. It is useful in eDiscovery as a method for culling and producing data sets.
Peck approved the use of technology-assisted review for managing production in two seminal eDiscovery cases Da Silva Moore v. Publicis Groupe, 287 F.R.D. 182 (S.D.N.Y. 2012), and Rio Tinto PLC v. Vale S.A., 306 F.R.D. 125 (S.D.N.Y. 2015).
Peck is an advocate of TAR and noted in Rio Tinto that “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.”
The recent decision highlights the fact that while a judge may strongly believe that a specific protocol is superior, it remains the parties' responsibility to cooperate and determine what process will work.
Pauline Hyles sued New York City, alleging she was discriminated against in her employment. During discovery, the parties were unable to agree on the scope and method of producing electronically-stored information.
Hyles' counsel consulted with a vendor and proposed that the city should use TAR for its production. The city disagreed, expressing concern that the parties wouldn't be able to agree on which documents to feed into the system for that process.
The court said Hyles was correct that, in general, TAR is cheaper and superior to keyword searching.
And while Peck also said that he is a strong supporter of the Sedona Conference Cooperation Proclamation and that he believes parties should cooperate in discovery, there is a limit to the power of cooperation.
The Sedona Conference is an institute with the mission of “creating practical solutions and recommendations of immediate benefit to the bench and bar.” The group has published guidelines and principles for attorneys and judges to use when handling discovery and litigation.
The court cited Principle 6 of the Sedona Principles, which says that responding parties are best situated to determine which methods and technologies are appropriate for production of their own ESI.
“While Hyles may well be correct that production using keywords may not be as complete as it would be if TAR were used, the standard is not perfection, or using the ‘best' tool, but whether the search results are reasonable and proportional,” the court said.
The court said it would have preferred if the city had agreed to use TAR, but that it can't force the city to do so.
Cronin and Byczek LLP represented Hyles.
The New York City Law Department represented the city.
To contact the reporter on this story: Tera Brostoff in Washington at firstname.lastname@example.org
Full text at http://src.bna.com/hla.
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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)