Federal Court Rules on How TAR Is to Be Done

In FCA US, LLC v. Cummins, No. 16-12883 (E.D. Mich. Mar. 28, 2017), Judge Avern Cohn ruled that performing technology assisted review to a full data set, before culling it down by running keyword searches, is to be preferred to culling by keyword searches before doing TAR. The court's brief order cites only one source other than the parties submissions, the Sedona TAR Case Law Primer. Back on October 11, 2016, the Tip of the Night summarized the Sedona Conference's guide, and noted that, "The Northern District of Indiana denied a motion to make a party redo its review with TAR after it had already performed keyword searches, and let it proceed by applying TAR to a set culled down through the use of the keyword searches, but the District of Nevada stated that it was not a best practice to use TAR on documents found with the use of traditional search terms." In Section V, "Disputed Issues Regarding TAR", subsection C, is entitled,"Using Search Term Culling Before TAR". Here the following pro-TAR before keyword searching points are made:

1. N.D. Ind. - In re Biomet M2A Magnum Hip Implant Products Liability Litigation, - predictive coding might find documents a keyword search would not.

2. D. Nev. - Progressive Casualty Ins. Co. v. Delaney - applying TAR only to documents hitting keyword searches, was contrary to the best practices guide of a software vendor.

3. S.D.N.Y. - Rio Tinto v. Vale - Judge Peck said that keyword culling before running TAR would not occur in a perfect world.

The court noted that the parties should have been able to reach an agreement on how to do culling between themselves without involving the court.