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Summary: Sedona Conference TAR Case Law Primer

August 24, 2016

 

The Sedona Conference

TAR Case Law Primer, Public Comment Version (August 2016)

Summary by Cashida Okeke, Associate

 

Earlier this month, the Sedona Conference Working Group on Electronic Document Retention and Production (WG1) published a brief compendium on the history of technology-assisted review in civil litigation called the TAR Case Law Primer.  The primer outlines the development of TAR from at first, an “unproven technology” to a now widely-used and, in some cases, preferable methodology to assist with the collection and review of a parties’ ESI.  Rio Tinto.  The primer begins with the first published mention of TAR in the Da Silva Moore case in 2012, in which the court both highlights civil practitioners’ reluctance to embrace the new technology, while also noting that the tool “should be seriously considered for use in large-data-volume cases” to potentially eliminate time and cost considerations. 

The primer then briefly summarizes several decisions since Da Silva Moore, in which other courts have not only encouraged the use of TAR to “significantly increase the effectiveness and efficiency of searches,” National Day Laborer Organizing Network, but have sometimes gone beyond the role of advocating for TAR, to ordering parties to “consider the use of predictive coding.”  FDIC v. Bowden

However, authors of the primer are quick to point out that the use of TAR is not without its share of problems.  The primer thoroughly highlights some of the still unresolved issues and concerns with using TAR, such as courts’ differing opinions on allowing parties to change their methodology after discovery has already begun, or permitting the use of keyword searches to cull and reduce the document populations prior to the use of TAR. 

One of the more controversial TAR issues discussed at length in the primer regards the disclosure of seed and validation sets used to train TAR tools, including the coding decisions made on such training documents.  The primer notes the wide-ranging opinions on this issue, with some courts seeming to encourage disclosure by discussing how TAR can only be effective with “transparency and cooperation of counsel.”  Finance Agency.  Other courts cite to both the Federal Rules as well as Sedona’s Cooperation Proclamation to deny such disclosure requests and to encourage parties to find more suitable evaluative measures, such as statistical estimations of recall rates or gaps in productions.  Biomet, Rio Tinto

Despite these differing opinions and numerous other TAR topics, the courts often state that use of TAR is a “judgment call,” and that the parties’ main obligations are to work cooperatively, efficiently, and in accordance with the Federal Rules of Civil Procedure. 

A review of TAR case law, as indicated by the primer, demonstrates not only an unsettled body of law, but also a growing comfort with the use of TAR tools in civil litigation, government investigations, and even foreign jurisprudence.  Lastly, the primer encourages periodic review of the legal landscape surrounding TAR technologies as its use becomes more widely accepted.

Read the primer in its entirety by visiting The Sedona Conference website at the following link.