Utilization of TAR: When the other party opposes the use of TAR <Bridgestone Americas vs. IBM>

See: Bridgestone Americas, Inc. v. International Business Machines Corporation

(Https://docs.justia.com/cases/federal/district-courts/tennessee/tnmdce/3:2013cv01196/57186/89)

In the US proceedings, both plaintiffs and defendants go through a procedure called discovery that seeks out "documents that are highly relevant to the case" that can be used as evidence.This process can be very expensive, and everyone involved, including the courts, is looking for ways to reduce the cost of discovery.In that case, it is expected that fairness, fairness, and the balance (benefits and burdens of discovery) will not be compromised, and that they will remain at a certain level.

In US courts, the utilization rate of TAR (technology assisted review) has shown a significant increase, and there are increasing calls for its utilization as a method for effectively selecting / reviewing documents.However, it is still a new technology, and eDiscovery experts are constantly paying attention to cases where there is a dispute over the use of TAR.

A good example is the Bridgestone Americas v IBM case (also listed in the eDiscovery law primer 2017 at the Sedona Conference).Initially, both parties agreed to use term search, but plaintiff Bridgestone conducted a keyword search and found more than 200 million documents.We have filed for the use of predictive coding (TAR), despite the initial agreement and the discovery phase already underway, as the estimated cost of document review has exceeded $ 100 million. It was.Defendant IBM objected to it because it was an unreasonable demand for the original agreement and it was unfair to change things in the middle of the discovery.Since no agreement could be reached between the two parties on this matter, the decision was left to the court.

The court dismissed IBM's opposition and allowed Bridgestone Americas to use TAR.The court decides whether or not to use TAR by itself, not by the court, but by each party depending on their circumstances (court tactics, case law, budget, etc.). I emphasized that it should be.We also avoided setting rules regarding the use of TAR, saying that there is no "single correct solution".The court also emphasized that "openness and transparency" are very important, as plaintiffs are "changing their trajectory along the way" (discovery has already begun but they are changing the review process). Did.The court's decision also includes providing the defendant with the first seed document that the plaintiff used for predictive coding.

Lawyer's view

The court says "there is no single, concise and correct solution," but was there really any other way than allowing Bridgestone Americas to use predictive coding?Looking at the large-scale proceedings around the world, the number of 200 million documents is enormous.And it's kind of strange that the world-renowned tech company defendant asks plaintiffs not to use the best of the technologies out there today.

The important thing is that if you think TAR will benefit your clients, you should consider using it as soon as possible.Ideally, it should have been done from the beginning of the proceedings, but even after the discovery has begun, as in this case, the cost advantage of using TAR is great, and to the defendant. It is not unreasonable to utilize TAR if it can be explained properly that the influence of TAR is small (even if TAR is used, the "relevant" document requested by the defendant is provided, etc.). It is.

So when would the court refuse to use TAR? It's hard to imagine refusing to use TAR in this case, as 200 million is a huge number, but in smaller cases, and the defendant is economically (or this case). I think the court could dismiss the plaintiff's request if it can prove to be disadvantaged.

Anisa Henderson (Florida, USA / Washington, DC, USA)