Judge Peck: Party’s Preference Trumps TAR (Perspective)

Editor’s Note: The author is a lawyer and writer in Massachusetts and works for an e-Discovery company.

When Magistrate Judge Andrew J. Peck speaks, the e-discovery world listens. He was, after all, the first judge to approve the use of technology-assisted review in litigation. So it was notable earlier this month when Judge Peck not only spoke, but did so in order to turn down a request to mandate TAR.

In an Aug. 1 ruling, Judge Peck, who sits in the U.S. District Court in Manhattan, refused to order the city of New York to use TAR instead of keywords to search for relevant documents and emails. Attorneys for Pauline Hyles, a black female who is suing the city for workplace discrimination, had sought to force the city to use TAR, arguing it would be more cost efficient and effective than keyword searches.

Hyles’ attorneys likely thought they had a sympathetic ear in Judge Peck. After all, it was he who issued the first judicial opinion approving the use of TAR in the seminal 2012 case Da Silva Moore v. Publicis Groupe and it was he who last year declared in Rio Tinto PLC v. Vale SA that it is now “black letter law” for courts to approve requests to use TAR.

Even here, Judge Peck agreed with Hyles’ attorneys “that in general, TAR is cheaper, more efficient and superior to keyword searching.”

But there was one critical difference in this case from the others. Typically, the request to use TAR comes from the party that wants to use it. In contrast, the request here came from one party to force the opposing party to use it.

Citing the Sedona Conference Cooperation Proclamation — a sort-of 10 Commandments of how parties should deal with each other in discovery – Judge Peck said that the party responding to a discovery request is best situated to choose its methods and technologies.

“The City as the responding party is best situated to decide how to search for and produce ESI responsive to Hyles’ document requests,” he wrote. “Hyles’ counsel candidly admitted at the conference that they have no authority to support their request to force the City to use TAR. The City can use the search method of its choice.”

But what about Judge Peck’s own statement that TAR is superior to keyword searching? That does not matter, Judge Peck said, because under the Federal Rules of Civil Procedure, “the standard is not perfection, or using the ‘best’ tool, but whether the search results are reasonable and proportional.”

“The Court would have liked the City to use TAR in this case,” Judge Peck said. “But the Court cannot, and will not, force the City to do so.”

What the Ruling Means

So what does this mean for lawyers involved in e-discovery? Here are what I see as the key takeaways:

• If you’re on the fence about using TAR, this opinion should push you over to the “yes” side. Even though Judge Peck did not force the city to use TAR, he could not have been clearer about his own belief in TAR’s superiority over other search methods. In fact, in case he wasn’t clear enough in the body of the opinion, he repeated it in his conclusion: “To be clear, the Court believes that for most cases today, TAR is the best and most efficient search tool.”

• If you want to be stubborn about using TAR, then feel free. As Judge Peck wrote, he would have preferred that the city use TAR. In my experience, when a judge tells you his preference, it’s a good idea to follow it. But the city chose not to and Judge Peck concluded it was outside his authority to order otherwise.

• Proportionality prevails over perfection. This point about proportionality is nothing new – it is embedded in case law and the federal rules. But it bears repeating because it is often forgotten. There are good reasons to use the “best” technology — cost savings high among them — but the federal rules do not mandate it.

Might this outcome be different in a future case, as TAR becomes more widely used? Judge Peck leaves open that possibility.

“There may come a time when TAR is so widely used that it might be unreasonable for a party to decline to use TAR,” he said. “We are not there yet.”

I would add that, thanks to Judge Peck, we’re likely to be there sooner rather than later.