Technology-Assisted Review Is Not Compulsory, but Litigants’ Reluctance to Accept New E-Discovery Technologies Comes With Consequences

A Special Master appointed to administer discovery disputes in In re Mercedes-Benz Emissions Litigation, pending in the District of New Jersey, rejected Plaintiffs’ application to compel Defendants to utilize technology assisted review (“TAR”) or predictive coding in connection with the parties’ negotiation of their search term protocol. While we have previously addressed courts that have “endorsed” the use of predictive coding and/or TAR and have recommended that litigants consider the use of such technologies to promote efficiency in the discovery process, courts will be extremely hesitant to impose affirmative requirements on litigants in carrying out discovery. TAR is a process “in which human reviewers and a computer engage in an interactive process to ‘train’ the computer how to identify responsive documents based on properties and characteristics beyond simple search terms.” Special Master Dennis M. Cavanaugh, U.S.D.J. (ret.) observed that courts have universally concluded that TAR is “cheaper, more efficient and superior to keyword searching.” Nevertheless, the Special Master acknowledged that “responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for producing their own electronically stored information.” Thus, while courts have permitted parties to use TAR for document review, no court has compelled predictive coding over another...