February 14, 2019 Articles

Transparency or Translucency: Guidance on TAR Protocols Is Not Crystal Clear

There is no one-size-fits-all TAR protocol.

By Rose J. Hunter Jones and Priya Kolli Funderburk

We are fast approaching the seventh anniversary of Judge Peck’s seminal opinion in Da Silva Moore v. Publicis Groupe recognizing “that computer-assisted review is an acceptable way to search for relevant ESI in appropriate cases.” 287 F.R.D. 182, 183 (S.D.N.Y. 2012). However, although “it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it,” the use of technology-assisted review (TAR) is still not as widely adopted by producing parties as it could be. Rio Tinto PLC v. Vale S.A., 306 F.R.D. 125, 127 (S.D.N.Y. 2015).

While there are many barriers to the use of TAR by producing parties, a common reason that TAR is not being used is the level of transparency required by some courts. Seven years in, the courts remain split on the level of transparency required of the producing party endeavoring to use TAR. The importance of transparency is a common theme to these opinions, with some opinions approving full disclosure of the TAR process, including handing over the documents used to train the TAR system regardless of whether the documents are responsive in the pending action. One thing is certain: there is no one-size-fits-all TAR protocol. 

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