It’s hard not to feel a bit embarrassed for all the bloggers who await, and write about, nearly everything Magistrate Judge Andrew Peck (S.D.N.Y.) writes about the search for and production of electronically stored information (ESI). We’re far more guarded over here at Discovery Advocate, only commenting a few times (here, here, here, here, here and, um, here).
What do you need to know about Judge Peck’s recent decision in Hyles v. New York City? It builds on multiple themes that appear in his prior opinions. The main point in Hyles is that a requesting party cannot force a responding party to use technology assisted review (TAR) or, for that matter, any other particular method, to search for and produce ESI. This is not a surprise. Judge Peck previously made this point in Rio Tinto PLC v. Vale S.A., relying on some of the same precedent he now invokes in Hyles – the Tax Court’s recently revisited 2014 ruling in Dynamo Holding (“[T]he Court is not normally in the business of dictating to parties the process that they should use when responding to discovery”) and The Sedona Conference Principle 6 (“Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information”). Continue Reading