As part of its Working Group on Electronic Document Retention & Production, the Sedona Conference recently released a “TAR Case Law Primer” that analyzes court decisions that directly or indirectly touch upon issues involving technology-assisted review (“TAR”).
The primer begins with a brief summary of Da Silva Moore v. Publicis Groupe, 287 F.R.D. 182 (S.D.N.Y. 2012), the first published opinion agreeing that TAR is an “acceptable way to search for relevant ESI in appropriate cases.” Id. at 183. Although this opinion approved the use of TAR in that case under the particular facts and issues before the court, many parties were still unclear regarding the method of implementing TAR, the appropriate level of involvement by opposing parties (if any), and whether an agreement must be reached regarding technical specifics of the TAR process.
Unsurprisingly, this uncertainty resulted in inconsistent decisions across various jurisdictions and the primer analyzes a number of divisive issues, including:
- Whether a party can be compelled to use TAR;
- Whether a party can decide to use TAR after previously agreeing to use other review methodologies;
- Whether it is appropriate to apply search terms to reduce the document population before using TAR;
- Whether a party must disclose the seed set, training set, or validation sets with opposing counsel;
Although the case law involving these issues will continue to evolve, the primer provides a helpful introduction to the existing landscape related to TAR.
The primer is available on The Sedona Conference’s website at: https://thesedonaconference.org/publication/TAR%20Case%20Law%20Primer