Can a Party Compel Another Party’s Use of TAR?

Past cases like Kleen Products and Hyles, along with Sedona Principle 6, stand for the proposition that a requesting party cannot compel TAR use, because generally speaking, producing parties choose methods and requesting parties judge results.  Judges, however, have occasionally directed TAR use themselves to accelerate delinquent discovery efforts (see, e.g., Indep. Living Ctr. of S. California and Winfield).

In re Mercedes-Benz Emissions Litigation

In the case of In re: Mercedes-Benz Emissions Litig., 2020 WL 103975 (D.N.J. 2020), the parties reached an impasse regarding the document identification methodology to be employed by the defendants.  The plaintiffs wanted the defendants to use predictive coding or another form of technology-assisted review, while the defendants wished to employ a “custodian-and-search-term approach.”

The plaintiffs ultimately asked the Special Master to compel the defendants’ use of TAR, arguing “that this type of computer-assisted coding process yields significantly better results than either traditional human ‘eyes on’ review of the full data set or the use of search terms.”  The defendants contended, however, that:

. . . this case presents a number of unique issues that would make developing an appropriate and effective seed set challenging, such as language and translation issues, unique acronyms and identifiers, redacted documents, and technical documents.

The Special Master’s Analysis 

The Special Master began his analysis with a review of several past cases, including Hyles:

While ‘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,’ no court has ordered a party to engage in TAR over the objection of that party.  The few courts that have considered this issue have all declined to compel predictive coding.  [emphasis added; internal citations omitted]

The Special Master also looked to Sedona Principle 6, as did the judges in the prior cases.  Based on these authorities, the Special Master concluded that – even though he “believes TAR would likely be a more cost effective and efficient methodology for identifying responsive documents” – it’s the defendants’ choice if “they prefer to use the custodian-and-search term approach.”

A Warning about Proportionality and Performance 

In reaching that conclusion, however, the Special Master also “cautioned” the defendants about the effect choosing this course of action would have on his future assessment of any burden or proportionality issues raised in relation to these discovery efforts:

However, Defendants are cautioned that the Special Master will not look favorably on any future arguments related to burden of discovery requests, specifically cost and proportionality, when Defendants have chosen to utilize the custodian-and-search term approach despite wide acceptance that TAR is cheaper, more efficient and superior to keyword searching.  [emphasis added]

Moreover, the Special Master left open the possibility of the plaintiffs renewing their request to compel TAR use at a later point in the process, “if Plaintiffs contend that Defendants’ actual production is deficient.”

A Note about Search Validation

Additionally, courts have long had an expectation that some kind of validation of searches will take place – regardless of whether TAR is involved – to ensure their reasonable efficacy, and the Special Master reiterated that expectation in this case:

The parties agree and case law dictates that appropriate validation be utilized to test search results.  See e.g. In re Seroquel Products Liability Litig., 244 F.R.D. 650, 662 (M.D. Fla. 2007) (Baker, M.J.) (“[W]hile key word searching is a recognized method to winnow relevant documents from large repositories, use of this technique must be a cooperative and informed process. . . .  Common sense dictates that sampling and other quality assurance techniques must be employed to meet requirements of completeness.”).  [emphasis added]

In accordance with this expectation, the Special Master resolved a dispute over the plaintiffs’ proposed search protocols by directing the plaintiffs to define some concrete validation steps through cooperation with the defendants:

However, Plaintiffs’ proposal does not articulate how it will perform appropriate sampling and quality control measures to achieve the appropriate level of validation.  As no articulable alternative process has been proposed by Plaintiffs, the Special Master will adopt Defendants’ protocol to the extent that it will require the parties, at Defendants’ request, to meet and confer concerning the application of validation procedures . . . .  [emphasis added]