Action Item: Companies and individuals involved in litigation that includes e-discovery, should be aware of a decision last week by Magistrate Andrew J. Peck, whose e-discovery decisions are well-regarded in the legal community. This decision protects a producing party’s discretion to choose their preferred method of searching for and producing responsive electronically stored information.

In the wake of the Federal Rules of Civil Procedure’s new e-discovery rules effective December 1, 2015, parties are required to confer with the goal of cooperating on various issues including disclosure or discovery of electronically stored information (“ESI”). However, a requesting party cannot force a producing party to use a specific methodology in searching its computer systems for responsive ESI. This was the ruling last week by Magistrate Andrew J. Peck of the United States District Court for the Southern District of New York, in Hyles v. New York City, 2016 WL 4077114 (S.D.N.Y. August 1, 2016).

In Hyles, a case in which the plaintiff alleged employment discrimination and hostile environment against the City of New York, Magistrate Peck decided whether, at plaintiff’s request, before the City had expended money searching for responsive ESI, the City could be compelled to use technology-assisted review, or TAR, in searching for responsive ESI, when the City preferred to use keyword searching. Magistrate Peck decided the issue with a “decisive ‘NO.’”

Magistrate Peck went to great lengths to ensure that the parties did not interpret the reason for his decision as being against the use of TAR. Thus, Magistrate Peck reminded the parties that he is a judicial advocate for the use of TAR in appropriate cases, and a firm believer in the Sedona Principles, Best Practices Recommendations and Principles for Addressing Electronic Document Production (the “Sedona Principles”)—in particular Principle 6.¹Id. at *3. The Sedona Principles are a set of 14 principles, which were developed by the Sedona Conference, a nonprofit research and educational institute, in order to apply the basic principles of discovery to ESI.

Magistrate Peck also acknowledged that the plaintiff was correct, that “in general, TAR is cheaper, more efficient and superior to keyword searching.” Id. at *2. Magistrate Peck pointed to his seminal decision in Da Silva Moore v. Publicis Groupe, 287 F.R.D. 182 (S.D.N.Y. 2012) wherein he approved the use of TAR as an acceptable e-discovery search method in appropriate cases. Hyles, 2016 WL at *2. Magistrate Peck cited to his March 2015 decision where he had again approved the use of TAR and wrote that 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.” Rio Tinto PLC v. Vale S.A., 306 F.R.D. 125, 127 (S.D.N.Y. 2015). Magistrate Peck then referred to a footnote in Rio Tinto wherein he noted that courts in other jurisdictions had refused a party’s request to force a producing party to use TAR. However, in those cases the producing party had already expended significant monies using keyword searches and thus “it was not clear what a court might do if the issue were raised before the producing party had spent any money on document review.” Id. at *2; Rio Tinto, 306 F.R.D. at 127, n.1 (emphasis supplied). Hyles presented Magistrate Peck with the opportunity to rule on that issue—whether a court can compel a responding party to use TAR before much money has been spent on searching for responsive ESI.

Despite his approval of the use of TAR, Magistrate Peck held that “the City as the responding party is best situated to decide how to search for and produce ESI responsive to Hyle’s document requests.” Hyles, 2016 WL at *3, citing to Sedona Principle 6.

Peck agreed with the Tax Court Judge in Dynamo Holdings Ltd. Partnership v. Comm’r of Internal Revenue, 143 T.C. 9, 2014 WL 4636526 at *3 (2014), who stated that courts are “not normally in the business of dictating to parties the process that they should use when responding to discovery.” Hyles, 2016 WL at *3. Simply put, although Magistrate Peck “believes that for most cases today, TAR is the best and most efficient search tool … [and] … would have liked the City to use TAR in this case … the Court cannot, and will not, force the City to do so.” Hyles, 2016 WL at *3.

While the law in this area is plainly evolving, and “there may come a time when TAR is so widely used that it might be unreasonable for a party to decline to use TAR,” as Magistrate Peck stated, “We are not there yet.” A requesting party cannot force a responding party to use a specific search methodology in searching for responsive ESI.

1. Principle 6 provides, “Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.” Id.