Matthew Verga, XDD: Can a Party Compel Another Party’s Use of TAR?

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Can a Party Compel Another Party’s Use of TAR?

In In re Mercedes-Benz Emissions Litigation, a Special Master reaffirmed the right of producing parties to choose their methods – but not without validation

by Matthew Verga, JD, Xact Data Discovery

We have discussed before the question of whether or not one party can compel another party to utilize a technology-assisted review methodology for discovery.  In that discussion, we concluded that cases like Kleen Products and Hyles, along with Sedona Principle 6, stand for the proposition that a requesting party cannot compel TAR use, because generally speaking, producing parties choose methods and requesting parties judge results.  We also noted, however, that judges have occasionally directed TAR use themselves to accelerate delinquent discovery efforts (see, e.g., Independent Living Center and Winfield).

In re Mercedes-Benz Emissions Litigation

In the case of In re Mercedes-Benz Emissions Litig., Case No. 2:16-cv-881 (D.N.J. Jan. 8, 2020), the parties reached an impasse regarding the document identification methodology to be employed by the defendants.  The plaintiffs wanted the defendants to use predictive coding or another form of technology-assisted review, while the defendants wished to employ a “custodian-and-search-term approach.”

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