In reaching that conclusion, however, the Special Master also \u201ccautioned\u201d 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:<\/p>\n
\nHowever, Defendants are cautioned that the Special Master\u00a0will not look favorably on any future arguments related to burden of discovery requests, specifically cost and proportionality<\/strong>, 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. \u00a0[emphasis added]<\/p><\/blockquote>\nMoreover, the Special Master left open the possibility of the plaintiffs renewing their request to compel TAR use at a later point in the process, \u201cif Plaintiffs contend that Defendants\u2019 actual production is deficient.\u201d<\/p>\n
A Note about Search Validation<\/strong><\/h2>\nAdditionally, courts have long had an expectation that some kind of validation of searches will take place \u2013 regardless of whether TAR is involved \u2013 to ensure their reasonable efficacy, and the Special Master reiterated that expectation in this case:<\/p>\n
\nThe parties agree and\u00a0case law dictates that appropriate validation be utilized to test search results<\/strong>.\u00a0 See e.g.\u00a0In re Seroquel Products Liability Litig.<\/em>,\u00a0244 F.R.D. 650, 662\u00a0(M.D. Fla. 2007) (Baker, M.J.) (\u201c[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. . . .\u00a0 Common sense dictates that sampling and other quality assurance techniques must be employed to meet requirements of completeness.\u201d).\u00a0\u00a0[emphasis added]<\/p><\/blockquote>\nIn accordance with this expectation, the Special Master resolved a dispute over the plaintiffs\u2019 proposed search protocols by directing the plaintiffs to define some concrete validation steps through cooperation with the defendants:<\/p>\n
\nHowever, Plaintiffs\u2019 proposal\u00a0does not articulate how it will perform appropriate sampling and quality control measures to achieve the appropriate level of validation<\/strong>. \u00a0As no articulable alternative process has been proposed by Plaintiffs, the Special Master will adopt Defendants\u2019 protocol to the extent that it will\u00a0require the parties<\/strong>, at Defendants\u2019 request,\u00a0to meet and confer concerning the application of validation procedures<\/strong>\u00a0. . . . \u00a0[emphasis added]<\/p><\/blockquote>\n<\/div><\/div><\/div><\/div><\/div><\/div><\/div><\/p>\n","protected":false},"excerpt":{"rendered":"
In the case of In re Mercedes-Benz Emissions Litigation, a Special Master reaffirmed the right of producing parties to choose their methods \u2013 but not without validation<\/p>\n","protected":false},"author":709803,"featured_media":81426,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[834,3085,460,858,873,470,875,840,853],"tags":[],"yoast_head":"\n
Can a Party Compel Another Party\u2019s Use of TAR? - Consilio.com<\/title>\n \n \n \n \n \n \n \n \n \n \n \n\t \n\t \n\t \n \n \n