The Southern District of New York Rules that It Cannot Force a Responding Party To Use Technology Assisted Review When Searching for Documents
October 13, 2016
In Hyles v. New York City et. al., (Case No. 10-3119, 2016 U.S. Dist. LEXIS 100390 [S.D.N.Y. Aug. 1, 2016], the plaintiff, an African-American female employed by the City of New York, was demoted. Specifically, she was replaced by a white male and demoted to a different position with a lesser salary. Ultimately, plaintiff sued the City for discrimination and a hostile work environment under various federal statutes.
Discovery in the case was unnecessarily protracted for a number of reasons including a temporary stay and attendant delays due to mediation, motion practice, and what the Court called, a “lack of effort by counsel.” Eventually, a discovery conference was held before Magistrate Judge Andrew Peck after counsel for both parties jointly requested the Court resolve various discovery disputes. As is relevant to this blog, the parties requested the Judge determine the scope of electronic discovery regarding: (a) custodians, (b) the date range to be searched, and (c) search methodology to be utilized. Regarding the issue of search methodology, the City sought to use keyword searches designed to identify potentially responsive materials. Plaintiff, on the other hand, requested the Court compel the City to use a form of technology assisted review (“TAR”) to perform the City’s search for potentially responsive materials. In seeking to compel the City, plaintiff asserted that TAR is the more cost effective and efficient way to obtain discovery. The City, in opposition, argued that the cost of TAR was too much and, because the parties failed to collaborate well in the past they “would not be able to collaborate to develop the seed set for a TAR process.”
In response to the plaintiff’s argument that the use of TAR would be the most efficient and cost effective, Judge Peck agreed stating “the Court believes that for most cases today, TAR is the best and most efficient search tool,” finding it “superior” to key word searching and noting, “[t]he Court would have liked the City to use TAR in this case”. However, citing Sedona Conference Principle 6, Judge Peck held that “the responding party is best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own [ESI].”
Judge Peck noted that someday, the law may be at the point where “it might be unreasonable for a party to decline to use TAR… [but,] [w]e are not there yet.” Hyles, supra, 2016 U.S. Dist. LEXIS 100390 . at *9-*10. Therefore, the Court denied plaintiff’s application to force defendant to use predictive coding.
It is interesting to note the ever-growing trend among federal judges to embrace TAR as an effective way to contain costs and engage in an efficient discovery process. While it is true that the state of the law currently allows the responding party to determine how best to identify potentially responsive data such that the party can comply with its discovery obligations, I predict (no pun intended) that more and more parties – when faced with the potentially tremendous financial costs attendant to e-discovery – may soon turn to various TAR methodologies if only as a means to control costs.