Entrata v. Yardi Systems (D. Utah Oct. 29, 2018) shows that while entering a TAR protocol may help promote cooperation between sides, it is not required. A party has the right to use TAR unilaterally without approval from the court or their opposition.
The primary e-discovery dispute in this case centers around creating an agreement around the use of technology-assisted review.
After months of unproductive negotiations, the plaintiff decided to use TAR without an agreement with the defendant on how TAR would be used. Subsequently, the defendant raised concerns about the plaintiff’s TAR process and filed a motion to compel the plaintiff to reveal “the complete methodology and results” of their process.
- Magistrate judge rejects defendant’s motion. Without providing any evidence of deficiencies in the plaintiff’s productions, the court would not compel plaintiff to produce information around their TAR process.
- A failed second try. Subsequently, the defendant tried its luck with the district court, which was again rejected, since full transparency into another side’s TAR process is not required unless the parties agreed upon a ESI search protocol. In this case, they did not.
- No court approval needed to use TAR. Though courts will permit the use of TAR as articulated in the Da Silva Moore ruling, they do not mandate that the party obtain authorization from the court to use TAR.
Expert Analysis from Hon. Andrew Peck (Ret.), Sr. Counsel, DLA Piper
Goldilocks applies to legal disputes. By waiting months to bring the TAR-related dispute to the Court (on the eve of the fact discovery cutoff), the Court found that Yardi waited too long. Moreover, although not cited by the Court, this also was an example of Sedona Principle #7: the movant needs to show a deficiency in the production to get relief. Finally, it is another opinion supporting the producing party’s right to use TAR.
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