Use of Technology-Assisted Review Can't Be Forced

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By Tera Brostoff

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.

NYC Rejects TAR

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.

Can't Be Forced

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

To contact the editors responsible for this story: Jessie Kokrda Kamens at, Carol Eoannou at

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