How can I force my adversary to use predictive coding (TAR)? Good luck with that…

Using the court to drag your opponents production of ESI out of the stone age probably won’t work.

Author: Peter H. Robinson


Case Citation: Hyles v. N.Y. City, No. 10CIV3119ATAJP, (S.D.N.Y. Aug. 1, 2016)


Employee/Personnel/Employer implicated:   Employer, Employee


eLesson Learned: The court will not force a party to use predictive coding (TAR) as long as their preferred method of production is reasonable.


Tweet This: Parties can’t force one another to produce documents using predictive coding.



In a discovery dispute about the method of production used by one party, the court is very reluctant to impose a particular method of production, such as TAR, on an unwilling party. When an attorney requests that their adversary produce electronically stored information (ESI), the requesting attorney has very little control over how that information is produced.

In the employment discrimination case, Hyles v. N.Y. City, (S.D.N.Y. Aug. 1, 2016), the defendant, New York City, was asked to produce all electronically stored documents relating to the plaintiff, Pauline Hyles, originating from nine specific city officers during a 5-year period. New York agreed to the discovery request, but insisted that a keyword search be used to identify the relevant documents. Ms. Hyles objected, claiming that using predictive coding, AKA Technology Assisted Review, would be more efficient and cost-effective.
Judge Peck clearly prefers TAR to the keyword search method. He cites his own decision in a 2009 case, which according to Judge Peck was the “dark ages in terms of ediscovery,” where he describes the various potential pitfalls of using keyword search review in order to produce ESI. Those problems include the careful thought, quality control, and testing required to get effective and accurate results from keyword searching. He clearly is an advocate of using TAR instead, because it is more efficient, cheaper, and produces better results, in most cases.
He is albeit unwilling to impose the courts idea of “best practice” on any party without a showing that the preferred search method was unreasonable. He points to the Sedona Conference Cooperation Proclamation of which he is a signatory, which states clearly that “Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate,” for producing their own discovery.
The court is clear that, generally, TAR is the best and preferred method of producing ESI. However, as long as other methods are in common use and are, in the court’s eyes, not unreasonable, the producing party may use the reasonable method that they prefer, even if that method is not TAR. Judge Peck does leave the possibility open of a future date where the currently used methods are deemed unreasonable compared to newer more efficient technology, but that is not the situation we find ourselves in.
Peter Robinson, a Seton Hall University School of Law student (Class of 2017), focuses his studies on constitutional rights, legal research and brief writing. He is a member of the Seton Hall Law Circuit Review Journal. After graduation, he plans to practice law in the area of civil litigation. Prior to attending law school, he worked as a remodeling contractor as well as a substitute public school teacher.

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