Magistrate Judge Peck, a widely recognized expert on e-discovery, published an opinion today approving a stipulated protocol for technology-assisted review of documents (or “TAR”). The opinion is notable because it contains a clear statement supporting a party’s right to choose TAR: “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.” The opinion is also notable because it discusses one open issue in the TAR case law — the extent to which the parties must share information about their “seed” sets of documents — and because it attaches the parties’ protocol as guidance for practitioners. The key discussion is here:
One TAR issue that remains open is how transparent and cooperative the parties need to be with respect to the seed or training set(s). In Da Silva Moore, defendant MSL volunteered such transparency, confirming that “‘[a]ll of the documents that are reviewed as a function of the seed set, whether [they] are ultimately coded relevant or irrelevant, aside from privilege, will be turned over to’ plaintiffs.” Da Silva Moore, 287 F.R.D. at 187; see also id. at 192 (“This Court highly recommends that counsel in future cases be willing to at least discuss, if not agree to, such transparency in the computer-assisted review process.”). In In re Actos, 2012 WL 7861249 at *4, the parties’ protocol had “experts” from each side simultaneously reviewing and coding the seed set. In Bridgestone, 2014 WL 4923014at *1, the plaintiff had offered to provide the responsive and nonresponsive seed set documents to IBM and Judge Brown stated that he “expects full openness in the matter.” And in Fed. Hous. Fin. Agency v. HSBC, in a decision from the bench on July 24, 2012, Judge Cote required transparency and cooperation, including giving the plaintiff full access to the seed set’s responsive and non-responsive documents (except privileged). In contrast, in the second Biomet decision, 2013 WL 6405156 at * 1, 2, Judge Miller said that he could find no authority that would allow him to require Biomet to share seed set documents with plaintiffs’ counsel, but suggested that Biomet rethink its opposition to doing so. Thus, where the parties do not agree to transparency, the decisions are split and the debate in the discovery literature is robust. See John M. Facciola & Philip J. Favro, Safeguarding the Seed Set: Why Seed Set Documents May Be Entitled To Work Product Protection, 8 Fed. Cts. L. Rev. 1 (2015) . . . . In any event, while I generally believe in cooperation, requesting parties can insure that training and review was done appropriately by other means, such as statistical estimation of recall at the conclusion of the review as well as by whether there are gaps in the production, and quality control review of samples from the documents categorized as non-responsive . . . . The Court, however, need not rule on the need for seed set transparency in this case, because the parties agreed to a protocol that discloses all non-privileged documents in the control sets. One point must be stressed – it is inappropriate to hold TAR to a higher standard than keywords or manual review. Doing so discourages parties from using TAR for fear of spending more in motion practice than the savings from using TAR for review. The Court has written this Opinion, rather than merely signing the parties’ stipulated TAR protocol, because of the interest within the ediscovery community about TAR cases and protocols . . . . [F]or whatever benefit it may be to subsequent cases, the parties’ cover letter (Dkt. No. 181) and approved protocol (Dkt. No. 181-1) are attached to this Opinion as an Appendix.
[Updated; second paragraph added]