In Hyles v. New York City et. al., Case No. 10-3119, 2016 U.S. Dist. LEXIS 100390 (S.D.N.Y. Aug. 1, 2016), Plaintiff, a black woman, was an employee of the City who was demoted with a salary reduction. She was replaced by a white male and sued Defendant for discrimination and hostile work environment under various federal statutes. During the case, discovery was stayed/delayed due to mediation, motion practice, and “lack of effort by counsel”. A discovery conference was held after counsel for both parties sent a joint letter to the court asking for resolution of discovery disputes.
The parties asked the court to determine the scope of ESI discovery with respect to custodians, date range for searches, and search methodology. Defendant sought to use simple keyword searches, while Plaintiff wanted the court to compel Defendant to use predictive coding to perform its searches for responsive materials. Plaintiff asserted that predictive coding, or technology assisted review (TAR), would be the most cost effective and efficient way of obtaining discovery. Defendant refused because of cost and also because, based upon the parties’ relationship, it asserted they would not be able to collaborate on the seed set for a TAR process.
The court noted that TAR is cheaper, more efficient, and “superior” to keyword searching. Courts in the district had commonly permitted the use of TAR by parties who wished to use it. However, the court also stressed that the courts typically will not force a party to use TAR. The court found that the principles of cooperation did not require the use of TAR against Defendant’s wishes, citing the Sedona Principles: Second Edition for the concept that “responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own [ESI].”
The court reiterated that it believed TAR is the best search tool, but it still could not force the City to use it for its discovery responses. (“There may come a time when TAR is so widely used that it might be unreasonable for a party to decline to use TAR. We are not there yet.” Hyles, supra, 2016 U.S. Dist. LEXIS 100390 . at *9-*10.) Therefore, the court denied Plaintiff’s application to force Defendant to use predictive coding in its discovery response process.