Three years after Da Silva Moore v. Publicis Groupe, Judge Peck issued a new opinion dealing with predictive coding.
In this fraud case, Judge Peck stressed that 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”.
According to Judge Peck, 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)”.
Several approaches are possible. The court noted that “though the extent to which adverse parties must cooperate in sharing TAR training documents is unsettled, the parties may choose to cooperate, as they did in this case, and should be encouraged to do so”. Where the parties do not agree on transparency, the decisions were split.
Judge Peck suggested that “statistical estimation of recall at the conclusion of the review” as well as verifying “whether there are gaps in the production, and quality control review of samples from the documents categorized as non-responsive” may also be good tools to insure that training and review was done appropriately.
In the case at hand, the court did not rule on the issue of seed transparency, because the parties agreed on an ESI protocol that “disclosed all non-privilege documents in the control sets.” The approved TAR protocol was the result of the parties’ agreement, not of a court order.
Rio Tinto Plc v. Vale S.A., 2015 U.S. Dist. LEXIS 24996, 8 (S.D.N.Y. Mar. 2, 2015) is available (with subscription) at http://www.lexisnexis.com
More information is available at https://www.unitedstatescourts…
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