SDNY Recognizes Party Using TAR Not Required to Disclose Control Sets To Opposing Party

Magistrate Judge Andrew J. Peck's recent decision in Rio Tinto PLC v. Vale S.A., S.D.N.Y., No. 14 Civ. 3042 (RMB)(AJP) (March 2, 2015), recognizes disclosure of non-responsive documents is not a per se requirement in cases where TAR is used. This dicta in the opinion reflects an important evolution in Judge Peck's jurisprudence on this issue and generally in the case law.   

Three years ago, in Da Silva Moore v. Publicis Groupe & MSL Grp., 287 F.R.D. 182 (S.D.N.Y. 2012) (Peck, M.J.), aff'd, 2012 WL 1446534 (S.D.N.Y. Apr. 26, 2012), Judge Peck authored the first decision approving the adoption of a detailed TAR protocol. TAR, or Technology Assisted Review, is a means of combining human knowledge with technology to make discovery more efficient and cost effective. TAR begins with a subject matter expert coding documents (known as seed or training sets) to calibrate the computer algorithm. Once the algorithm is sufficiently trained, it is run across the entire universe