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A More Progressive Case for the Use of Technology-Assisted Review

As we mentioned in a recent blog post, a federal magistrate judge in the District of Nevada recently refused to allow a party to use technology-assisted review (TAR) on top of its use of search terms to screen documents because it had already agreed to a discovery protocol that involved manual review. In Progressive Casualty Insurance Co. v. Delaney, the magistrate judge noted that “[h]ad the parties worked with their e-discovery consultants and agreed at the onset of this case to a predictive coding-based ESI protocol, the court would not hesitate to approve a transparent, mutually agreed upon ESI protocol.” However, the party’s proposed “do-over” lacked the “transparency and cooperation” required.

Another case followed a similar trajectory: in United States v. ExxonMobil Pipeline Co., the Eastern District of Arkansas declined to rule on the issue of whether the defendant should use TAR to complete document review to meet its discovery deadline. Quoting the Court “The Court understands that defendants have a large amount of discovery to produce. However, providing defendants an unduly long period of time to complete that discovery raises the possibility of prejudice to plaintiffs. Time has passed since this motion was filed. It is unclear to the Court whether the parties will reach compromise on the document review method to be employed and whether the Court’s rulings on the remaining discovery disputes raised in this motion will significantly impact the scope of work to be done to complete fact discovery and document production. The Court directs that defendants complete their review and production of documents by July 10, 2014, unless good cause is shown in advance for extending the period.”

On July 22, 2014, in Bridgestone Americas, Inc. v. International Business Machines Corp., U.S. Magistrate Judge Joe Brown of the Middle District of Tennessee opted for a different approach and permitted the plaintiff to switch to using TAR midstream over the defendant’s objection. Unlike Progressive, here, the judge relied on Federal Rule of Civil Procedure 26, which provides that courts should tailor discovery “to be as efficient and cost-effective as possible.” Because the case involved millions of documents and discovery would likely cost millions of dollars, the judge decided to allow the plaintiff “to switch horses in midstream.” The judge reminded the parties of his expectation that they be open and transparent, observing the plaintiff’s agreement to share the seed documents used to train the TAR algorithm.

Given courts’ continuing emphasis on cooperation, counsel should meet with a qualified e-discovery expert to ascertain the potential scope of discovery and weigh their options for defensible data analysis and reduction as soon as litigation is contemplated. For example, in Exxon, the parties disagreed over how many documents the lawyers could review per day. Had the parties undertaken an early data assessment and determined the potential document pool, studied their options for reviewing that pool, and scoped out the cost and timeline, they would have been in a better position to evaluate how tools such as TAR could expedite discovery. With discovery playing such an integral role in litigation, counsel should explore all methods for performing document analysis and review and be as transparent as possible with the opposing parties.