The Court ruled that the defendant violated the ESI Protocol by unilaterally applying TAR without conferring with the plaintiff as agreed in the protocol. The plaintiff asserted that they would have negotiated keyword search terms differently had they known that the defendant intended to use TAR after applying keywords. The Court, however, refused to require the defendants to review all of the remaining documents, and instead ordered the defendant to participate in a validation protocol that required the production of 5000 documents identified to be non-responsive in the TAR process over the defendant’s objection.

The Court authorized the use of TAR to identify discoverable documents. The Court held that culling through keyword search followed by a TAR process that integrated statistical validation “satisfies the reasonable inquiry standard and is proportional to the needs of this case under the federal rules.”

In this case the Court rejected a last minute argument by defendant Yardi criticizing the use of TAR and demanding details of the plaintiff’s TAR methodology. The Court stated, “Notably, Yardi has not provided any specific examples of deficiencies in Entrata’s document production or any specific reason why it questions the adequacy of Entrata’s document collection and review. Without more detailed reasons why production of Entrata’s TAR information is needed, the court is unwilling to order Entrata to produce such information.”

In an Order in this case, the Court set out a protocol to guide the parties in the discovery process and specifically endorsed TAR. A key quote: “[W]ithout micromanaging how the producing Party meets its discovery obligations and without requiring the disclosure of attorney work product or other privileged information, the Parties will endeavor to be reasonably transparent regarding the universe of documents subject to targeted collections or culling via search terms and/or TAR/CAL.”

In Winfield, the Court looked favorably upon the defendant’s use of predictive, saying “While it is true that Plaintiffs here do not have clear insight into the City’s predictive coding process and training, this Court has required the City to provide in camera submissions addressing these subjects. These in camera submissions reveal that the City appropriately trained and utilized its TAR system. The City’s seed set included over 7,200 documents that were reviewed by the City’s document review team and marked as responsive or nonresponsive in order to train the system.”

The Court in this case accepted one of the parties arguments that predictive coding significantly speeded the production process, saying “But the Court will not set a lengthy schedule based on the possibility of future problems that have yet to arise, particularly given Defendant's claim that the ‘TAR process is capable of achieving an exceptionally high level of accuracy.’”

In this matter, the Court agreed with the plaintiff’s proposal to employ predictive coding in the production of its documents. The Court stated, "Applying TAR to the universe of electronic material before any keyword search reduces the universe of electronic material is the preferred method. The TAR results can then be culled by the use of search terms or other methods."

In this Australian case, the Supreme Court of Victoria approved of the parties using TAR, as well as a mutually agreed protocol for the searching of 1.4 million documents.

In this case the Court refused to require a party to employ TAR, saying "[E]ven if predictive coding were a more efficient and better method, which Pfizer disputes, it is not clear on what basis the Court could compel Pfizer to use a particular form of ESI, especially in the absence of any evidence that Pfizer’s preferred method would produce, or has produced, insufficient discovery responses. Therefore, the Court HEREBY DENIES Plaintiff’s motion."

The Court looked favorably upon predictive coding in this case, stating "To reduce the costs and burdens of document review and production, any party may use predictive coding or technology-assisted review for the purpose of culling the documents to be reviewed or produced. Any party using predictive coding or technology-assisted review ("TAR") to cull the documents to be reviewed agrees that as early as reasonably practicable (and in any event prior to using such tools) it will disclose to the opposing parties the type of technology it will be using and a general description of the TAR methodology that will be used."

In Hyles, the defendant wished to use keyword searching rather than TAR. The Court found that “the responding party is best situated to decide how to search for and produce ESI…” and stated that, "The Court would have liked the City to use TAR in this case. But the Court cannot, and will not, force the City to do so."

In Dynamo II, the responding party agreed to allow the requesting party to code the documents used as training sets. The Court said, “The parties are to be commended for working together to develop a predictive coding protocol. . . ”

In this matter the Court approved a protocol allowing the parties’ use of predictive coding, stating, “The parties reserve the right to use CAR, also referred to “technology assisted review,” or “predictive coding,” in which a machine-learning algorithm assesses the likely relevance of a corpus of documents based on manual relevance determinations applied to a subset of that corpus.”

In this British case the Court favorably discussed the state of technology-assisted review and said, "I reach the conclusion based on cost that predictive coding must be the way forward."

This was the first British case to consider the use of predictive coding, with the Court ruling that its circumstances made the use of predictive coding advisable.

The parties here were explicitly ordered to consider predictive coding methods of search, and the Sedona Conference held out as a recommended resource. The Court said, “Going forward, the Court GRANTS Plaintiffs’ motion compelling Ford to disclose its collection methods, including the names of custodians whose records will be searched, and further ORDERS the parties to continue streamlining the process with agreed-upon search terms and phrases as previously instructed. In this regard, the parties are ORDERED to involve their IT experts and to consider other methods of searching such as predictive coding; perhaps, making use of the publications of the Sedona Conference.

The Court in this case encouraged the parties to embrace predictive coding, stating "Parties requesting ESI discovery and parties responding to such requests are expected to cooperate in the development of search methodology and criteria to achieve proportionality in ESI discovery, including appropriate use of computer-assisted search methodology, such as Technology Assisted Review, which employs advanced analytical software applications that can screen for relevant, privileged, or protected information in ways that are more accurate than manual review and involve far less expense."

The Court stated in this case that, "Predictive coding is now promoted (and gaining acceptance) as not only a more efficient and cost effective method of ESI review, but a more accurate one."

In this case the Court strongly affirmed that predictive coding is no longer an “unproven technology”, stating: "In the three years since the Da Silva Moore ruling, the case law has developed to the point that it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it."

In this case the Court noted in passing that, "At the hearing, Snaider claimed that document review would take approximately 300 hours. However, Snaider does not address the likelihood that in a case such as this computer-assisted review would no doubt be invoked, and while that is costly, it is much more efficient than assigning individuals to review a large volume of paperwork."

In an Order detailing the search protocol to be used by the parties, the Court here stated, "In lieu of identifying responsive ESI using the search terms and custodians/electronic systems . . . a party may use a technology assisted review platform to identify potentially relevant documents and ESI."

In this case, the defendants used TAR in producing a first round of documents. When the plaintiffs requested a further document production the defendants objected, saying that using TAR the first time meant they had produced everything to which the plaintiffs would be entitled. The Court, however, disagreed.

The Court in this matter endorsed the use of computer-assisted review, saying in reference to the defendant’s proposed protocol, “their desired approach is a reasonable one.”

The Court here simply noted, with implicit approval, that the plaintiff had "produced more than 1.1 million documents comprising more than 4 million pages . . . using search terms, predictive coding, and manual review methods".

In this case the Court not only approved the use of predictive coding, but observed that parties do not even need to ask for permission to use it. The Court stated, “Respondent asserts that predictive coding should not be used in these cases because it is an "unproven technology". We disagree . . . Where, as here, petitioners reasonably request to use predictive coding to conserve time and expense, and represent to the Court that they will retain electronic discovery experts to meet with respondent’s counsel or his experts to conduct a search acceptable to respondent, we see no reason petitioners should not be allowed to use predictive coding to respond to respondent’s discovery request.”

In Bridgestone, the Court allowed the plaintiff to switch to using TAR in the middle of the case despite the defendant objecting. The Court stated that “[t]he Magistrate Judge believes that he is, to some extent, allowing Plaintiff to switch horses in midstream. Consequently, openness and transparency in what Plaintiff is doing will be of critical importance.” The plaintiff thereafter provided the defendant with the seed documents used to set up predictive coding.

In this case, the defendant was ordered to begin using predictive coding when “little or no discovery” had been completed after nine months. The plaintiff was ordered to pay for one-half of any quality assurance costs.

In this case, the Court explicitly ordered the parties to "consult with a computer forensic expert to create search protocols, including predictive coding as needed, for a computerized review of the parties' electronic records."

The Court here found no problem with the use of TAR, stating, "If the parties agree that predictive coding would be appropriate in this case, they are encouraged to employ that tool."

In this matter, the Court felt sufficiently confident in its own grasp of TAR that it found no need to appoint a special master to handle discovery challenges related to predictive coding, stating “I see no reason why I won’t be able to provide the discovery rulings the parties need and with sufficient dispatch that the case can stay on a timetable.”

The Court here looked favorably upon TAR, stating, "Predictive coding appears to offer a reasonable means by which Defendants may enhance the efficiency of their discovery efforts."

In this matter the Court, while encouraging the defendants to identify their seed set of documents, held that under the F.R.C.P. it could not require that the information be disclosed. The Court stated, “The only authority [the plaintiff] cites is a report of the Sedona Conference that has had a significant, salutary, and persuasive impact on federal discovery practice in the age of electronically stored information . . . But neither the Sedona Conference nor the Seventh Circuit project expands a federal district court’s powers, so they can’t provide me with authority to compel discovery of information not made discoverable by the Federal Rules.”

In this matter, the Court was aware of the parties’ use of predictive coding and approved of it.

The court here approved predictive coding on top of keywords and approved the use by both parties of a shared ESI consultant, but declined to order that a party’s seed set methodology be disclosed.

In this case the Court approved a stipulation in which both parties agreed a protocol for the use of predictive coding in their discovery process.

The Court in this case ordered, even over the objections of opposing counsel, that predictive coding be used for document production.

The Court in this matter referred to TAR as a reason for rejecting a party’s burden argument, saying that “predictive coding is an automated method that credible sources say has been demonstrated to result in more accurate searches at a fraction of the cost of human reviewers.”

In Harris, the Court pointed to the existence of TAR in rejecting a party’s argument that document production would be burdensome, stating that "Although this Court may not share the technological sophistication of Mr. Wise, I certainly know that the amount of time, cost, and effort expended to produce these records from the computer is significantly less than by hand. With the advent of software, predictive coding, spreadsheets, and similar advances, the time and cost to produce large reams of documents can be dramatically reduced."

The Court here asked that parties use TAR or show cause as to why it should not be used, stating "This seems to me to be an ideal non-expedited case in which the parties would benefit from using predictive coding. I would like you all, if you do not want to use predictive coding, to show cause why this is not a case where predictive coding is the way to go.” The plaintiff was allowed not to use TAR after arguing that the low number of documents it would be reviewing made TAR unnecessary.

In this case, the defendants were using a search methodology other than TAR to produce documents and were nearly done with their review when the plaintiffs asked the Court to force them to start over using TAR. The Court declined to force a party to use one technology over another. A stipulation was eventually agreed in which plaintiffs withdrew their demand but reserved the right to raise objections and suggest alternative methods.

The Court’s case management order in this matter laid out in great detail – and expressly approved – the predictive coding parameters that were agreed by both parties.

The Court here ruled that, “[P]arties can (and frequently should) rely on latent semantic indexing, statistical probability models, and machine learning tools to find responsive documents. Through iterative learning, these methods (known as ‘computer-assisted’ or ‘predictive’ coding) allow humans to teach computers what documents are and are not responsive to a particular FOIA or discovery request and they can significantly increase the effectiveness and efficiency of searches.”

The Court here approved the defendants’ use of predictive coding even over the plaintiffs’ objections, stating “[i]t is hereby ordered Defendants shall be allowed to proceed with the use of predictive coding for purposes of the processing and production of electronically stored information.”

This case featured the first published Court opinion recognizing the validity of TAR.

The Court stated: “This Opinion appears to be the first in which a Court has approved of the use of computer-assisted review. That does not mean computer-assisted review must be used in all cases, or that the exact ESI protocol approved here will be appropriate in all future cases that utilize computer-assisted review. Nor does this Opinion endorse any vendor (the Court was very careful not to mention the names of the parties' vendors in the body of this Opinion, although it is revealed in the attached ESI Protocol), nor any particular computer-assisted review tool. What the Bar should take away from this Opinion is that computer-assisted review is an available tool and should be seriously considered for use in large-data-volume cases where it may save the producing party (or both parties) significant amounts of legal fees in document review.”