In Re Viagra Confirms TAR an Option, Not an Obligation

Adam Kuhn
November 15, 2016

The Northern District of California has rejected a motion to compel a producing party to use Predictive Coding. The In Re Viagra order essentially follows on the reasoning that “the responding party is the one best situated to decide how to search for and produce ESI responsive to discovery requests.” Magistrate Judge Sallie Kim’s order prominently cites Judge Peck’s Hyles decision from August, 2016, which similarly rejected an effort to force TAR on a producing party

The Hard Facts

Defendant Pfizer proposed a standard search-term based workflow to identify relevant documents for its production to the plaintiffs in this class action over the drug known commonly as Viagra. The workflow includes several stages of sampling, testing, and validating with opportunities for the parties to exchange lists of proposed search terms and develop further terms. Prior to Pfizer initiating review and analysis, the plaintiffs sought a court order compelling Pfizer to use TAR, arguing that TAR would yield better results at a lower cost. The Court declined the request, following the Hyles reasoning (and Sedona Principle Six). The Court further observed that no clear basis in law existed for such power.

Predictive Coding is Always an Option

Jurisprudence around TAR has evolved rapidly over the past four years and lawyers now have dozens of orders and disputes to refer to. Yet, In Re Viagra and Hyles pose a stark contrast to the issue of seeking requesting permission to use TAR over objections from the party receiving production. We’ve covered cases like Bridgestone, Dynamo, and Rio Tinto where the court affirmed the producing party’s discretion to use TAR over objection. The case law is well-developed on this issue to the point where Judge Peck has observed:

“In the three years since Da Silva Moore, 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.”

But Predictive Coding is not (yet) an Obligation

However, the issue of forcing another party to use TAR is one that has consistently been rejected. The most recent example (and the one that the Northern District of California followed) is Hyles. But this argument was also raised in earlier cases like Kleen Products and Good v. American Water Works. Good featured a particularly interesting fact pattern where the requesting party sought to force the producing party to use TAR in their privilege review by making their acceptance of a 502(d) order conditional on a TAR workflow; the Court rejected this creative but unsupported strategy.

If Not Now, When?

As Judge Peck noted in Hyles: “There may come a time when TAR is so widely used that it might be unreasonable for a party to decline to use TAR. We are not there yet.” One wonders when, if ever, such a day will arrive. Interestingly, the famous quote, “If not now, when?” is attributed to the theologist Hillel the Elder, who is also credited with a version of the Golden Rule: “What is hateful to you, do not do to your fellow.” These aphorisms are particularly appropriate here. Would you want your opposing party to dictate the terms of your review workflow?

To be sure, there is a large group of lawyers “outside of the bubble” who aren’t yet aware of TAR, but forcing such attorneys to begrudgingly use an unfamiliar technology is, arguably, not the way forward.

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