Responding parties have significant discretion to design and deploy technology assisted review (“TAR”) workflows in a manner they determine is reasonable and proportional for the case.  At least that’s what the Northern District of Illinois suggested in its September 2020 ruling in Livingston v. City of Chicago (N.D. Ill. No. 16 CV 10156).

Livingston is a gender discrimination case challenging the City of Chicago’s Fire Department’s (“City”) application process.  The City collected roughly 1.5 million documents in the matter, and based on search terms agreed to following an earlier e-discovery dispute, culled this set to roughly 192,000 emails.  The City then informed Plaintiffs it intended to use TAR – and specifically Relativity’s Active Learning technology – to review this culled data set.

Plaintiffs objected to this approach and argued the City should be required to produce all documents that hit on search terms.  On this point, the Court rejected Plaintiffs’ argument, finding:  “While the City may dump all 1.3 million pages of documents on Plaintiffs with entry of a Rule 502(d) order, it also has the right to perform a review to produce only those documents that are responsive and relevant.”  (Emphasis added.)  In the alternative, Plaintiffs argued that if the City were allowed to use TAR, TAR should be run across the entire ESI collection, not the universe culled by search terms.

Magistrate Judge Young B. Kim ruled that the City was permitted to use TAR on its culled search universe.  In reaching this decision, the Court made several notable findings:

First, the court endorsed The Sedona Conference “Principle Six,” which provides that the party responding to discovery is best situated to evaluate appropriate procedures, methodologies and technologies and determine the manner by which it produces its ESI.  Specifically, the court held that the City should be able to determine its own TAR workflow:  “as the responding party [the City] is best situated to decide how to search for and produce emails responsive to Plaintiffs’ discovery requests. . . . Plaintiffs’ insistence that the City must collaborate with them to establish a review protocol and validation process has no foothold in the federal rules governing discovery.”

Second, the Court found that TAR could be properly deployed to a universe of documents already culled by search terms.  In so doing, the Northern District of Illinois sided with a growing number of courts recognizing a party need not necessarily run TAR against a full ESI universe to meet the obligations of the Federal Rules of Civil Procedure. See, e.g., Rio Tinto PLC v. Vale S.A. et al. (S.D.N.Y. No. 14 Civ. 3042 2015); Bridgestone Americas, Inc. v. I.B.M. Corp. (M.D. Tenn. No. 3:13-1196 2014); In re Biomet M2a Magnum Hip Implant Prods. Liab. Litig. (N.D. Ind. No. 3:12-MD-2391 2013).

Third, the Court reaffirmed that its approval of the City’s TAR process rested, in part, on the City’s offer to validate its TAR results with statistical evidence provided to the opposing party.  Here, the City had already disclosed the TAR tool it chose to use, and sufficient evidence of its TAR results to “make the production transparent.”

Finally, the Court clarified and highlighted that TAR is not to be held to a higher standard compared to other review methodologies such as search terms and manual review.  In so ruling, the Court recognized that the problem of incorrect responsiveness determinations exists “no matter which [search] methodology is employed.”

Overall, Livingston is indicative of the growing trend providing flexibility for parties to depart from the “either search terms or TAR, but not both” orthodoxy and adopt search methodologies that make sense for their case, subject to the ability for opponents to challenge methodologies based on results.

For additional information regarding various TAR workflows and other electronic discovery issues facing today’s organizations, please contact the professional(s) listed below, or your regular Crowell & Moring contact.