In Rio Tinto Plc v. Vale S.A., Case No. 14-3042 (Jul. 15, 2015), New York Magistrate Judge Andrew J. Peck recently considered Defendant’s request that the court appoint a special master to assist the parties with their technology assisted review (TAR) process.
In March, Judge Peck approved the parties’ proposed TAR protocol, titling his opinion “Predictive Coding a.k.a. Computer Assisted Review a.k.a. Technology Assisted Review (TAR) — Da Silva Moore Revisited” (referencing the 2012 landmark case he presided over where the defense used technology assisted review). Since January 2015, when it became evident that the parties intended to use TAR, the court repeatedly asked the parties to agree to have a special master oversee the TAR process. Neither party would agree to appoint one and the parties moved forward with drafting a TAR protocol without a special master’s guidance. The parties have recently failed to reach agreement on certain TAR-related points, and Defendant moved the court in June to appoint Maura Grossman, a leading TAR expert.
Plaintiff objected, noting that while it had “no objection to Ms. Grossman’s qualifications,” it objected on several grounds, including that Defendant should have agreed to a special master’s appointment earlier in the case, before the parties had already agreed to a TAR protocol. Judge Peck acknowledged Plaintiff’s criticisms, stating that he too wished the court could have appointed Ms. Grossman earlier but that “as the saying goes, better late than never,” and noting that the court believed that Ms. Grossman’s experience could assist in resolving unresolved issues regarding the parties’ TAR-based productions.
Plaintiff also raised a concern that Ms. Grossman’s appointment “will only cause the parties to revisit, rehash, and reargue settled issues.” Judge Peck took Plaintiff’s concern seriously but stated that “the Court will not allow that to happen . . . the standard for TAR is not perfection (nor of using the best practices that Ms. Grossman might use in her own firm’s work), but rather what is reasonable and proportional under the circumstances. The same standard will be applied by the special master.” Finally, Plaintiff raised concern regarding possible bias because one of defendant’s lawyers had three conversations with Ms. Grossman about TAR issues before her appointment. Judge Peck dismissed the concerns, concluding that none of the conversations suggested bias or a reason why Ms. Grossman could not serve “as a neutral special master.”
The Rio Tinto case appears ripe to expand and clarify the nascent TAR-related case law. Continue to stay tuned for ILS’s future coverage of the litigation.