March Madness: Judge Peck Issues New TAR Opinion

March Madness: Judge Peck Issues New TAR Opinion

College playoff basketball isn’t the only hot topic this month — so, too, is the matter of using technology-assisted review (TAR). U.S. Magistrate Judge Andrew Peck’s recent order in Rio Tinto Plc v. Vale S.A., allowing the respective parties’ stipulation for using TAR for discovery, has generated a great deal of buzz in the legal world.

Judge Peck began his opinion by drawing upon his earlier one in Da Silva Moore v. Publicis Groupe & MSL Grp., in which he concluded that TAR is an “available tool and should be seriously considered for use in large-data-volume cases where it may save the producing party (or both parties) significant amounts of legal fees in document review.” He goes on to assert that Da Silva Moore case law is now black letter law, “that where the producing party wants to utilize TAR for document review, courts will permit it.”

The esteemed judge on many e-Discovery topics addressed the transparency necessary with regard to the seed sets. In Da Silva Moore, he highly recommended transparency. In Rio Tinto, while Judge Peck generally believes in cooperation, he also believes that “requesting parties can insure that training and review was done appropriately by other means, such as statistical estimation of recall at the conclusion of the review as well as by whether there are gaps in the production, and quality control review of samples from the documents categorized as non-responsive.” Therefore, he declines to rule on seed set transparency for the case at hand.

“The Court, however, need not rule on the need for seed set transparency in this case because the parties agreed to a protocol that discloses all non-privileged in the control sets.”

Of particular note by Judge Peck is that “it is inappropriate to hold TAR to a higher standard than keywords or manual review.” By doing so can discourage parties from using TAR “for fear of spending more in motion practice than the savings” associated with the method.

Finally, he affirms that he has written this opinion in response to the interest within the e-Discovery community about TAR cases and protocols. And what an opinion it is. Nothing but net, some would say.

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