While Judge Andrew J. Peck’s “short and decisive” answer was “NO” to whether the plaintiff in the racial discrimination case of Hyles v. New York City could force the defendant to use TAR, he still deemed TAR as the “best and most efficient search tool” for most cases.
In this case, plaintiff Pauline Hyles alleged that in 2008 not only did the City of New York demote her and reduce her salary while she was employed in the finance department, but also replaced her — a black female of West Indian/Guyanese descent — with a white male.
After discovery in the case was delayed for multiple reasons, it culminated in a discovery dispute, which was then referred to Judge Peck. The judge held a discovery conference over the matters of scope and methodology. Dates, custodians and keywords were discussed. Then, at a later date and after consulting with a vendor, counsel for plaintiff proposed the use of TAR as it was a “more cost-effective and efficient method of obtaining ESI from Defendants.” The City declined out of concern over cost and collaboration, preferring to go with keyword searching.
When Judge Peck agreed with the City that it could not be forced to use TAR, he did reiterate his advocacy for TAR by citing his past noteworthy decisions in Da Silva Moore v. Publicis Groupe & MSL Grp. in 2012 and Rio Tinto Plc v. Vale S.A. in 2015.
Judge Peck concluded: “There may come a time when TAR is so widely used that it might be unreasonable for a party to decline to use TAR. We are not there yet.”