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Technology-Assisted Review Tools Up for Debate in Consumer Privacy Case

Technology-Assisted Review Tools Up for Debate in Consumer Privacy Case

Garner v., Inc.

W.D. Wash. May 19, 2023


Why This Case Is Important

With the dramatic increase in data volumes, corporate legal teams will need to find ways to cull documents easily yet effectively during the review process. Utilizing technology-assisted review tools can empower teams to tackle large data sets while complying with standard ESI protocols.


In this consumer privacy case, the court addressed a motion to prevent the unilateral use of technology-assisted review (TAR).

Plaintiffs alleged that passive data collection and retention by the Defendant’s digital assistant violated various consumer protection and wiretapping laws. During discovery, the Defendants notified Plaintiffs that they intended to use TAR tools to refine the initial production of two million documents.

The Defendants maintained that the large number of documents identified with the Plaintiffs’ terms required further culling, but Plaintiffs refused to discuss the use of TAR and moved to compel discovery without the use of TAR. The Plaintiffs argued that the court already ordered production based on specific search terms and that the use of TAR would be “improperly short-circuiting this process.”


  • Motion to Prevent Use of TAR Denied. The court denied the Plaintiffs motion to compel the Defendants to proceed with discovery without the use of TAR tools. The courted noted that “the use of search terms is not, standing alone, a bar to using technology to further refine the production.”
  • Objection Ran Counter to ESI Order. The court stated that the objection posed by the Plaintiffs was counter to the ESI order entered previously in the case, which allowed for “technology-aided methodologies.” Therefore, the use of TAR was a reasonable option for locating and filtering electronically stored information (ESI).
  • Use of Predictive Coding and TAR Reasonable. In response to the Plaintiff’s motion, the court made it clear that predictive coding and other TAR tool capabilities were a reasonable option in the discovery process when culling ESI.

Legal Analysis

By: Angie Nolet, Corporate Counsel, Redfin, and Co-founder and host, eDiscovery Chicks Podcast

This ruling echoes the trend towards accepting TAR as a viable, defensible review methodology. In this ruling, like others, we see the Court's exasperation with more-traditional practices like manual review that, at inception, were cutting-edge but that are now toilsome and needlessly expensive. The judiciary seems more than just TAR-curious: they're beginning to accept it as a reliable, cost-effective review method—and, in some cases, the most desirable strategy. This is unsurprising, given the ballooning volume of data in today's world and the commensurate rise in litigation costs.

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