eDiscovery Daily Blog
Court Determines TAR Without Keyword Search Culling First is Preferable: eDiscovery Case Law
In FCA US, LLC v. Cummins, Inc., No. 16-12883 (E.D. Mich., Mar. 28, 2017), Michigan District Judge Avern Cohn “rather reluctantly” decided a dispute between the plaintiff and defendant on whether the universe of electronic material subject to Technology Assisted Review (TAR) review should first be culled by the use of search terms by agreeing with the plaintiff that “[a]pplying TAR to the universe of electronic material before any keyword search reduces the universe of electronic material is the preferred method.”
In this dispute over the allocation of the cost incurred for an auto part that became the subject of a recall, the parties agreed on many issues relating to discovery and particularly electronic discovery. However, one issue that they couldn’t agree on was whether the universe of electronic material subject to TAR review should first be culled by the use of search terms. The plaintiff took the position that the electronic material subject to TAR review should not first be culled by the use of search terms, while the defendant took the position that a pre-TAR culling is appropriate.
Noting that the Court decides “rather reluctantly” to rule on the issue, Judge Cohn stated:
“Given the magnitude of the dispute and the substantial matters upon which they agree, the parties should have been able to resolve the discovery issue without the Court as decision maker. Be that as it may, having reviewed the letters and proposed orders together with some technical in-house assistance including a read of The Sedona Conference TAR Case Law Primer, 18 Sedona Con. J. ___ (forthcoming 2017), the Court is satisfied that FCA has the better postion (sic). Applying TAR to the universe of electronic material before any keyword search reduces the universe of electronic material is the preferred method. The TAR results can then be culled by the use of search terms or other methods.”
As a result, Judge Cohn agreed to enter the plaintiff’s proposed order regarding the TAR approach.
So, what do you think? Should TAR be performed with no pre-search culling beforehand? Should courts rule on a preferred TAR approach? Please share any comments you might have or if you’d like to know more about a particular topic.
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