Extract from Gareth Evans’s article “A Tale of Two Cases: TAR Trouble Arises from ESI Protocol”
With a nod to Dickens, it was the best of times for the defendant in a recent case seeking to change its document review process from search terms alone to using technology assisted review (TAR) on top of the search term hits. It was the worst of times for a defendant trying to do the same in another case.
Why was it wisdom in the eyes of one court and foolishness in the eyes of the other? The answer: The absence and presence, respectively, of an ESI protocol provision in which the parties agreed to “cooperate in good faith regarding the disclosure and formulation of appropriate search methodology.”
The primary lesson learned is to be careful what you put in an ESI protocol. A feel-good provision regarding cooperation can operate as a significant relinquishment of rights otherwise available under the rules of civil procedure.