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Can You Compel Your Opponent to Use Technology Assisted Review (TAR)?

Created on February 19, 2021


Director of Marketing at Exterro


Mercedes-Benz Emissions Litigation (D.N.J. Jan. 9, 2020) show that even though the technology assisted review (TAR) has proven to yield better results and reduced costs to more traditional review methods, opponents can’t demand the use of TAR.

Overview:

In this environmental litigation case, the plaintiffs motioned to compel the defendants to use technology assisted review (TAR) within e-discovery based on the fact that TAR “yields significantly better results than either traditional human ‘eyes on’ review of the full data set or the use of search terms.”

During e-discovery, the parties disagreed on how the defendants would review data for responsiveness. The plaintiffs wanted the defendants to use TAR while the defendants contended the “case presents a number of unique issues that would make developing an appropriate and effective seed set challenging, such as language and translation issues, unique acronyms and identifiers, redacted documents, and technical documents.”

The defendant refused to use TAR and argued that the plaintiff had no “authority for imposing TAR on an objecting party.”

Ruling:

    • Not Obligated to Use TAR. The court ruled that the defendants did not have to use TAR because courts “recognize that responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for producing their own electronically stored information.”
    • Court Dissuades Against Future Burden Arguments from Defendents. The court allowed the defendants to use more traditional search and custodian-based review techniques, but noted that the court would “not look favorably on any future arguments related to burden of discovery requests, specifically cost and proportionality.”
    • Court Recognized the Utility of TAR. The court went out of its way numerous times within its opinion to recognize that TAR is “cheaper, more efficient and superior to keyword searching.”
Mike Hamilton, J.D.

Expert Opinion from Mike Hamilton, J.D. Director of Marketing, Exterro

While not mandated by the court, this case law alert showcases the increased awareness and use of technology assisted review. Legal departments that are looking to decrease litigation costs without sacrificing defensibility can easily do so by assessing techniques that help find relevant data faster. Whether it’s TAR, creating a data map or doing iterative data collections, all these tools/techniques are tools that mature legal departments will have in their e-discovery tool kit moving forward.

Case Law Tip:

Download this guide to understand the rules and requirements for e-discovery practices under the FRCP.