Judge Peck Refuses to Force Responding Party to Use Technology-Assisted Review

Hyles v. New York City, No. 10 Civ. 3119 (AT)(AJP), 2016 WL 4077114 (S.D.N.Y. Aug. 1, 2016).

Where a plaintiff asked U.S. Magistrate Judge Andrew J. Peck to order the defendant to use technology-assisted review (TAR) rather than the keyword searching the defendant preferred, Judge Peck’s “short answer [was] a decisive ‘NO.’” 

Pauline Hyles sued New York City, her former employer, for race and age discrimination under federal and state law. After lengthy discovery delays, Judge Peck held a discovery conference to address the parties’ joint request for “rulings as to the proper scope” of discovery and the “search methodology” that the City should employ to identify electronically stored information (ESI).

Hyles, after consulting an ediscovery vendor, suggested that the City “should use TAR as a ‘more cost-effective and efficient method of obtaining ESI’” instead of keyword searches. The City refused given the costs of TAR and the likelihood that the parties “would not be able to collaborate to develop the seed set for a TAR process” given their squabbles over the scope of discovery. Since this dispute arose before the City had conducted any significant searches of its data, “this case squarely raise[d] the issue of whether the requesting party can have the Court force the responding party to use TAR.”

The court began by noting that “in general, TAR is cheaper, more efficient and superior to keyword searching.” Likening the use of keywords to the “‘dark ages,’” Judge Peck observed the “problems with keywords and the need for ‘careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or ‘keywords.’’”

However, Judge Peck also mentioned that “‘where the requesting party has sought to force the producing party to use TAR, the courts have refused.’” In accordance with the Sedona Principles, the “parties should cooperate in discovery.” But “[c]ooperation principles . . . do not give the requesting party, or the Court, the power to force cooperation or to force the responding party to use TAR.” Rather, Judge Peck stated that under Principle 6 of the Sedona Principles: Second Edition, Best Practices Recommendations & Principles for Addressing Electronic Document Production, “responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own [ESI].”

Therefore, as the responding party, the City was “best situated to decide how to search for and produce ESI responsive to” Hyles’s requests, and Judge Peck permitted the City to “use the search method of its choice.” Although the judge would have preferred that the City use TAR, he emphasized that the overall standard for discovery production “is not perfection, or using the ‘best’ tool, but whether the search results are reasonable and proportional.” Even so, he did allow that “if Hyles later demonstrates deficiencies in the City’s production, the City may have to re-do its search.” For now, he denied Hyles’s motion.

In closing, Judge Peck remarked that “for most cases today, TAR is the best and most efficient search tool.” While there “may come a time when TAR is so widely used that it might be unreasonable for a party to decline to use TAR,” “we are not there yet.”

Hyles v. New York City, No. 10 Civ. 3119 (AT)(AJP), 2016 WL 4077114 (S.D.N.Y. Aug. 1, 2016).



The best way to achieve your goal of having the other side agree to the use of TAR—or any ediscovery technology or method—is not to ask the court to force the opposing counsel to bend to your will but to provide persuasive evidence of its cost-effectiveness and efficiency during cooperative discovery conferences. As Judge Peck noted in a footnote, “some vendor pricing models charge more for TAR than for keywords. Usually any such extra cost is more than offset by cost savings in review time.” Here, City staff were tasked with document review, so contract attorney review cost did not play a role.

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