Prior to Judge Peck’s recent buzzworthy TAR opinion, TAR’s presence was also noteworthy in two other cases: Bridgestone Americas, Inc. v. IBM Corporation and Connecticut General Life Insurance v. Health Diagnostic Laboratory, Inc. In both, the discussion wasn’t “if” TAR was a valid method and could be used but, rather, “how” and what checks needed to be in place.
In a July 2014 Bridgestone order, Judge Brown allowed Bridgestone’s request to use TAR in reviewing more than two million documents for responsiveness. The judge acknowledged that he was “allowing Plaintiff to switch horses in midstream,” so “openness and transparency” were critically important. In a February 2015 order, Judge Brown reminded both parties that he expected “full transparency” in how TAR was established and used.
In the matter of Connecticut General Life Insurance, a stipulation was made in January 2015 with regard to the collection and production of documents and ESI. In it, if the producing party chose to use a technology or methodology other than search terms, like TAR, then it would have to disclose its intent and the review tool’s name. Of note, the party was not required to disclose the methodology details unless there was a “good faith allegation of a violation of Rule 26.”
As courts’ TAR opinions continue to evolve, what is your professional opinion of the methodology? We welcome hearing from you below.