TAR eDiscovery orders and opinions have made some pretty big splashes in the last five years, and the recent FCA US LLC v. Cummings, Inc., order, despite being brief, was no exception. The court took up the question of whether keyword search culling of a data set prior to the application of Technology Assisted Review (i.e., TAR or Predictive Coding) is the preferred method. The answer, in the court’s opinion, was simple but powerful: it is not.
Some have described this decision as a “nightmare.” Others have less vividly decried it as likely to impede much needed progress in the use of advanced analytics. While I understand the causes for concern, I find it hard to disagree with the court’s decision based on my understanding of the relevant judicial precedent and the gravity of the flaws associated with keyword search culling.
Personally, I don’t believe that TAR judicial history to date, apart from the circumstance and proportionality based rulings in In re Biomet (Apr. 18, 2013) and Bridgestone (July 22, 2014), support another outcome….
See the full post at the Altep Blog: FCA US LLC v. Cummings – It’s Not Perfect, but It Does Need to be Better