As discussed in prior posts, the Da Silva Moore case is not the only story in the saga of predictive coding, or technology-assisted review (TAR). We alerted you that a magistrate judge in the Northern District of Illinois was hearing expert testimony on the effectiveness TAR.

The discovery disputes in Kleen Products LLC v. Packaging Corporation of America began in May of 2011 when counsel for the putative class of plaintiffs served their first document requests. Defendants seemingly went about responding to the requests the old fashioned way; they gathered paper and electronic documents, retained vendors to assist in the processing, and began to undertake a review of the documents collected. Defendants produced millions of documents in response to the requests in a well-defined production format.

Plaintiffs, however, were not satisfied. They sought intervention from the court to force defendants to use TAR, or Content Based Advanced Analytics also referred to as CBAA in the record. Naturally, this resulted in motions and a number of written submissions. Surprisingly, however, the court held a series of evidentiary hearings on February 21 and March 27-28 of 2012 hearing testimony on defendants’ methodology for dealing with ESI, as well as expert testimony on the benefits of TAR.

The TAR-related elements of this discovery dispute were resolved in the court’s August 21, 2012 Stipulation and Order Relating to ESI Search and can only be described as a significant victory for the defendants. In the Stipulation and Order plaintiffs agreed to drop their insistence on the use of TAR for any documents collected to respond to the August 2011 document requests and any additional document requests served before October 1, 2013. For any additional data collected to respond to requests served after October 1, 2013, “the parties will meet and confer regarding the appropriate search methodology . . . .” In the event the parties cannot agree, either party can file a motion seeking judicial resolution. Plaintiffs can continue to press defendants on other perceived weaknesses in their methodology, but they cannot force the use of TAR.

As we have cautioned in the past, judicial assessment of TAR will experience multiple iterations. The movement away from linear review, if one occurs, will not be linear; the courts are in the process of learning about the benefits and risks of the technology. If both parties agree to use TAR, it is hard to imagine a court refusing to endorse its use. If one party seeks to use TAR over the other side’s objection, we may well see courts siding with the use of the technology. However, at this point in the evolution, at least in the Northern District of Illinois (and we suspect elsewhere), judges do not seem inclined to force a party to use TAR over its own objection if it prefers traditional methods.