Published on Nov 19, 2018 Parties who use technology-assisted review (TAR) must decide whether and how much of their process to disclose to the other side. Another key consideration is whether they should enter into a stipulated use protocol. A new case from Utah—Entrata, Inc. v. Yardi Systems, Inc.[1]—offers insights on these issues, particularly on the role and significance of transparency and cooperation.
Entrata v. Yardi Systems
The parties’ dispute in Entrata originated from their inability to execute an ESI search protocol that would address the use of TAR. The parties negotiated for several months over the terms of a protocol. After several meet and confer sessions, the parties represented to the court they would either finalize their stipulated protocol within 30 days or file their respective draft protocols with the court and let it decide which to approve. Surprisingly, however, the parties did not execute a final protocol or request the court to approve either of their competing protocols.
In the absence of a search protocol, plaintiff (Entrata) used TAR to facilitate its document productions. Sometime after those productions were finished, defendant (Yardi) began raising questions as to the quality and nature of Entrata’s TAR process. Yardi requested Entrata’s “TAR metrics,” including “its recall results,” so it could assess Entrata’s allegedly “unreliable and . . . insufficient TAR process.” Yardi eventually filed a motion to compel Entrata to disclose “the complete methodology and results” of its TAR process.
U.S. Magistrate Judge Paul Warner denied the motion, observing that Yardi failed to offer any evidence that Entrata’s TAR process was deficient:
Yardi has not provided any specific examples of deficiencies in Entrata’s document production or any specific reason why it questions the adequacy of Entrata’s document collection and review. Without more detailed reasons why production of Entrata’s TAR information is needed, the court is unwilling to order Entrata to produce such information. (emphasis added).
Unsatisfied with the magistrate judge’s ruling, Yardi sought relief from the district court. Yardi argued that the FRCP and case law obligated Entrata to reveal the details of its TAR process. Yardi additionally contended that Entrata’s use of TAR was improper because it failed to obtain court authorization before using TAR.
U.S. District Judge Clark Waddoups rejected Yardi’s arguments and denied its motion. While acknowledging that the FRCP expect cooperation, Judge Waddoups found they do not require a responding party to divulge its TAR process. Nor does the law impose an obligation of blanket transparency. In reviewing TAR decisions, Judge Waddoups observed that complete transparency was required only where the parties entered into an ESI search protocol. In Entrata, however, there was no protocol.
The court also found Entrata did not need the court’s approval prior to using TAR. While Da Silva Moore v. Publicis Groupe, 287 F.R.D. 182 (S.D.N.Y. 2012) suggested such a step was necessary, Judge Waddoups found that recommendation tempered by Rio Tinto PLC v. Vale S.A., 306 F.R.D. 125 (S.D.N.Y. 2015):
[S]ince Da Silva Moore, the case law has developed to the point that it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it.” . . . because it is “black letter law” that courts will permit a producing party to utilize TAR, Entrata was not required to seek approval from the Magistrate Court to use TAR where there was never an agreement to utilize a different search methodology.[2]
Lessons on TAR from Entrata
Entrata offers three lessons regarding the role and significance of transparency and cooperation on the use of TAR.
First, responding parties can use TAR without prior court approval. Even though this has been a settled point of law, requesting parties have continued to challenge a responding party’s unilateral use of TAR. Despite the benefits that a cooperative and transparent TAR process offers, Entrata confirms that a responding party may still choose to act unilaterally.
Second, where there is no agreement to use TAR, the responding party is not obligated to disclose details regarding its TAR workflow absent a showing that the process is deficient.
Third, Entrata highlights the importance of transparently and cooperatively working through discovery issues at the FRCP 26(f) conference or other meet and confers. Cooperation and transparency are not elixirs that eliminate all discovery ills. They do, however, provide a vehicle for informally resolving issues or crystallizing disputes so they can be addressed by the court. After the parties in Entrata reached an impasse over the protocol, they should have tendered their dispute to the court for its resolution. Such a course would have avoided the breakdowns that led to the parties’ dispute over the use of TAR and eliminated the ensuing motion practice and delays.
[1] Entrata, Inc. v. Yardi Systems, Inc., No. 2:15-cv-00102, 2018 WL 5470454 (D. Utah Oct. 29, 2018).
[2] The court also found that Yardi should have raised any concerns about Entrata’s use of TAR far earlier in the discovery process.
