TAR: Use it at the Beginning of E-Discovery or Potentially Lose it

In re Allergan Biocell Textured Breast Implant Products Liability Litigation

D. N.J. October 25, 2022

Why This Case Is Important

Both sides must agree to entering into a TAR protocol. In this case, asking for a change in review methodology in the middle of the review process was unacceptable, since both sides weren’t in agreement.

Ruling

• Use of TAR Denied. The special master judge denied the use of TAR based on the fact that there was no agreement between the parties to use TAR and defendants never proved the need to use TAR.
• No “General Principle” to Use TAR. Specifically, the court ruled that applying TAR after applying search terms was not common practice.
• Additional Disputes Could Arise if TAR Used. Regardless of the method, the court ruled that e-discovery costs would be high. But using TAR during and not at the beginning of review “open[ed] the door for potential disputes that may arise related to the accuracy of the review process and will further delay the completion of discovery and drive costs upward.”

Overview

In this case, the defendants proposed to the court to use technology assisted review (TAR) to review and produce documents. The plaintiffs argued against the use of TAR.

In defense of using TAR, the defendants argued the following:

• TAR is “standard practice and commonly used to promote efficiency and reduce costs.”
• They were in the best position to determine the right review method based on the number of documents remaining for review (560,000 documents), which would take around 20 weeks to complete via a manual review method

The plaintiffs requested that the defendants either proceed with the review using search terms and linear review (which had already been used in review) or use TAR for the entire review. To support this stance the plaintiffs argued:

• Using TAR for the entire review would “increase the accuracy of the review”
• Using TAR after applying search terms would be prejudicial because “it will exclude documents from review and reduce the ‘efficiency and accuracy’ of the review process.”

Legal Analysis

By, Hon. Andrew Peck (Ret.), Sr. Counsel, DLA Piper

I thought the Court’s well-reasoned decision in Livingston v. City of Chicago had put to bed the question of whether one could use search terms followed by TAR. The Special Master here found that Livingston and similar cases were just specific decisions and not the weight of authority. A key lesson from this case is be careful what you agree to in an ESI protocol, because you may be held to that, even if it is less efficient.