In Rio Tinto PLC v. Vale S.A., 14 Civ. 3042 (S.D.N.Y. March 2, 2015), U.S. Magistrate Judge Andrew Peck of the Southern District of New York, one of brightest and most informed jurists writing about e-discovery, summarized how, in the past three years, “the case law has developed to the point that it is now black-letter law” that courts will permit producing parties in e-discovery matters to use technology-assisted review and, in particular, predictive coding to review documents for production.

Peck's opinion is correct, brilliant and spot-on. However, what is as interesting as the opinion itself is what it does not touch on: The “black-letter law” developed over the past three years has developed in a relatively secluded corner of the litigation world. The delta between those litigators who have embraced and immersed themselves in e-discovery and those who continue to ignore it long after it has outgrown its Next Big Thing status, and the ramifications of that growing delta, are remarkable, and worthy of discussion.

The Tar Protocol

In Rio Tinto, the parties agreed to a protocol for the use of TAR and presented it to the court for is approval. By its own admission, then, the court wrote its opinion not to explain its reasoning in ruling for one side or against another, but simply “because of the interest within the e-discovery community about TAR cases and protocols.” It is worth taking a few moments to review the protocol the parties found acceptable.

The protocol initially required the responding party to identify the predictive coding software it intended to use, to ensure it had gained Frye or Daubert acceptance. It further required the disclosure of the “technical expert”—the person who would oversee deployment of the software—and a description of the “document universe”—the documents subjected to predictive coding.