On Oct. 1, 2018, an amendment to the Rules of the Commercial Division of the Supreme Court took effect codifying the Commercial Division's support of the use of technology assisted review (TAR) during discovery. Specifically, Commercial Division Rule 11-e(f) encourages parties to “use the most efficient means to review documents, including electronically stored information (ESI), that is consistent with the parties' disclosure obligations…and proportional to the needs of the case. Such means may include [TAR], including predictive coding, in appropriate cases.” Further, parties are prompted to “confer, at the outset of discovery and as needed throughout the discovery period, about [TAR] mechanisms they intend to use in document review and production.”

This amendment evidences the increasing approval of the use of TAR to assist in and expedite discovery. Although no published decisions have thus far addressed Rule 11-e(f), practitioners can glean guidance from the expanding universe of case law that discusses the use of TAR (including predictive coding). This article provides an overview of relevant case law and identifies trends that may inform how Commercial Division courts will apply Rule 11-e(f).

TAR Used to Review ESI

In Da Silva Moore v. Publicis Groupe, 287 F.R.D. 182 (S.D.N.Y 2012), a court, for the first time, sanctioned the use of “computer-assisted review” as a means to search and cull ESI. In Da Silva Moore, the court, facing a number of disputes regarding TAR, stated:

This Opinion appears to be the first in which a Court has approved of the use of computer-assisted review. That does not mean computer-assisted review must be used in all cases, or that the exact ESI protocol approved here will be appropriate in all future cases that utilize computer-assisted review. Nor does this Opinion endorse any vendor…, nor any particular computer-assisted review tool. What the Bar should take away from this Opinion is that…computer-assisted review is an available tool and should be seriously considered for use in large-data-volume cases where it may save the producing party (or both parties) significant amounts of legal fees in document review. Counsel no longer have to worry about being the “first” or “guinea pig” for judicial acceptance of computer-assisted review. As with keywords or any other technological solution to ediscovery, counsel must design an appropriate process, including use of available technology, with appropriate quality control testing, to review and produce relevant ESI while adhering to Rule 1 and Rule 26(b)(2)(C) proportionality. Computer-assisted review now can be considered judicially-approved for use in appropriate cases.

Id. at 193.

Since Da Silva Moore, courts have repeatedly held that a party may rely on TAR if it chooses to do so. See, e.g., Davine v. The Golub Corp., 2017 U.S. Dist. LEXIS 18109, at *3 (D. Mass. Feb. 8, 2017); Rio Tinto PLC v. Vale S.A., 306 F.R.D. 125, 127 (S.D.N.Y. 2015) (“In the three years since Da Silva Moore, 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.”). Rule 11-e(f) constitutes a codification of this growing trend of acceptance.

No TAR Mandates

While TAR is available to parties that wish to utilize it, courts have declined to mandate its use. In In re Biomet M2a Magnum Hip Implant Products Liability Litigation, 2013 U.S. Dist. LEXIS 84440 (N.D. Ind. Apr. 18, 2013), for example, the court held that a party cannot force another party to rely upon TAR. There, the defendants utilized a combination of traditional keyword culling and predictive coding to identify and produce responsive documents.

The plaintiffs thereafter claimed that the use of keyword culling tainted the search process and that the defendants should have used TAR from the inception of the review process. The plaintiffs demanded that the defendants re-examine the documents previously excluded from production using only TAR and traditional linear searches.

The court rejected this demand, finding that the question before it was not “whether predictive coding is a better way of doing things than keyword searching prior to predictive coding[,]” but rather “whether Biomet's procedure satisfies its discovery obligations….” Id., 2013 U.S. Dist. LEXIS 84440, at *5. The court concluded that the defendant did, noting that “the…request that Biomet go back to [s]quare [o]ne…and institute predictive coding at that earlier stage sits uneasily with the proportionality standard in [the Federal] Rule[s].” Id., 2013 U.S. Dist. LEXIS 84440, at *5.

Other courts addressing this issue have reached similar conclusions. In Hyles v. New York City, 2016 U.S. Dist. LEXIS 100390 (S.D.N.Y. Aug. 1, 2016), the court addressed whether a party could be forced to use TAR when it preferred keyword searching. The court found that “it [wa]s not up to the Court, or the requesting party…to force [the defendant]…to use TAR when it prefer[red] to use keyword searching.” Id., 2016 U.S. Dist. LEXIS 100390, at *9. The court continued: “While [the plaintiff] 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.” Id.

Thus, even though the court believed “that[,] for most cases today, TAR is the best and most efficient search tool[,]” and that “[t]he [c]ourt would have liked the [defendant] to use TAR in this case[,]” it concluded that it “cannot, and will not, force [defendant] to do so”because while“[t]here may come a time when TAR is so widely used that it might be unreasonable for a party to decline to use [TAR,] [w]e are not there yet.” Id., 2016 U.S. Dist. LEXIS 100390, at *9-*10.

Similarly, in In re Viagra (Sildenafil Citrate) Prods. Liab. Lit., 2016 U.S. Dist. LEXIS 144925 (N.D. Ca. Oct. 14, 2016), the court rejected a motion to compel the defendant to use predictive coding , holding that “[e]ven if predictive coding were a more efficient and better method[,]…it is not clear on what basis the [c]ourt could compel [defendant] to use a particular form of ESI, especially in the absence of any evidence that [defendant's] preferred method [of using search terms] would produce, or has produced, insufficient discovery responses.” Id., 2016 U.S. Dist. LEXIS 144925, at *52-*53.

Although courts have generally declined to mandate the use of TAR where a party is resistant to its use, even where TAR is viewed as the best and most efficient search tool available, some courts have shown a greater willingness to impose their preference where the parties agree to use TAR, but cannot agree as to exactly how TAR will be implemented. See FCA US v. Cummins, 2017 U.S. Dist. LEXIS 45212 (E.D. Mich. March 28, 2017).

TAR Software/Methodology

As TAR's use proliferates, courts will be forced to address whether a producing party should be compelled to disclose its TAR methodology. Thus far, courts have differed on this issue.

In In re Boiler Chicken Antitrust Litigation, 2018 U.S. Dist. LEXIS 33140 (N.D. Ill. Jan. 3, 2018), the court issued an ESI order “[w]ith the goal of permitting requesting parties an appropriate level of transparency into a producing party's electronic search process, without micromanaging how the producing party meets its discovery obligations and without requiring the disclosure of attorney work product or other privileged information….” Id., 2018 U.S. Dist. LEXIS 33140, at *34-*35. This order required the parties to disclose, among other things, how the TAR process would work, including whether the predictive coding software accounted for common misspellings and/or synonyms.

In Winfield v. City of New York, 2017 U.S. Dist. LEXIS 194413 (S.D.N.Y. Nov. 27, 2017), however, the court reached a very different result. After recognizing that “[i]n some cases, parties have agreed to—or courts have ordered—transparency into the TAR or predictive coding processes[, while in] other cases, courts have not required the production of seed set documents[,]” Id., 2017 U.S. Dist. LEXIS 194413, at *10 the court held that “in the absence of evidence of good cause…,” there is no basis for “courts to insert themselves as super-managers of the parties' internal review processes, including training of TAR software, or to permit discovery about such process[.]”

These orders highlight the manners in which courts may balance the need for transparency with the rights of a party to determine how best to meet its discovery obligations. Given the uncertainty, Commercial Division litigants should heed Rule 11-e(f)'s suggestion that parties “confer, at the outset of discovery and as needed throughout the discovery period, about [TAR] mechanisms they intend to use in document review and production.” Otherwise, they may find themselves litigating the issue without knowing which side will bear the burden and facing an all-or-nothing result.

Conclusion

Rule 11-e(f) represents a progressive stance on the use of TAR in discovery. Until the rule is more thoroughly interpreted by Commercial Division courts, practitioners can take guidance from the trends emerging from other courts' treatment of TAR. These trends counsel in favor of making an early determination as to whether a party intends to utilize TAR and, if so, transparently conferring with opposing counsel as to how TAR will be utilized. Given the uncertainties with how a Commercial Division court may resolve a TAR dispute, litigants can best retain control of the discussion by cooperating and reaching compromise with each other.

Brian L. Bank is a partner at Rivkin Radler. Michelle A. Bholan and Catalina De La Hoz are associates at the firm.