Rio Tinto PLC v. Vale S.A., Magistrate Judge Andrew Peck Addresses TAR., Notes That It Is Now The “Black Letter Of The Law” And Should Not Be Held To Higher Standard Than “Keywords Or Manual Review”

In his recent decision, Magistrate Judge Andrew Peck stated that he wrote the Opinion because of the “interest within the ediscovery community about TAR cases and protocols.” Addressing TAR, Magistrate Judge Peck observed that in the intervening three years since his decision in Da Silva Moore, “the case law has developed to the point that it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it.” Magistrate Judge Peck cites numerous recent decisions supporting his observation. However, he noted that one TAR issue that remains open is “how transparent and cooperative the parties need to be with respect to the seed or training set(s).” Magistrate Judge Peck observed that in situations in which the parties do not agree to transparency, “the decisions are split and the debate in the discovery literature is robust.”

Magistrate Judge Peck indicated that when the TAR methodology uses “continuous active learning (CAL) (as opposed to simple passive learning (SPL) or simple active learning (SAL)) the contents of the seed set is much less significant.” Noting that he believes in cooperation between the parties, Judge Peck also pointed out that the requesting parties have other options to make certain that training and review was done properly. The options highlighted by Magistrate Judge Peck include, “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.” Magistrate Judge Peck stated that the current case did not require him to address “seed set transparency” as the parties agreed to disclose all non-privileged documents in the control set. However, he stated that, “(o)ne point must be stressed – it is inappropriate to hold TAR to a higher standard than keywords or manual review. Doing so discourages parties from using TAR for fear of spending more in motion practice than in the savings from using TAR for review.” Magistrate Judge Peck approved the parties TAR protocol in this case, but noted it was based upon agreement between the parties and not a Court order.

Rio Tinto PLC v. Vale S.A., —F.R.D.—, 2015 WL 872294 (S.D.N.Y. Mar. 2, 2015)

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