In Garner v. Amazon.com, Inc., No. 2:21-cv-00750-RSL (W.D. Wash. May 19, 2023), Washington District Judge Robert S. Lasnik denied the plaintiff’s motion to prohibit the defendant to use technology assisted review (TAR), finding that the plaintiff’s refusal to discuss TAR with the defendant “improperly short-circuited” the process of conferring on its use.

Case Discussion

In this case regarding claims involving the recording habits of Amazon’s Alexa devices, the Court granted plaintiffs’ motion to compel searches in October 2022 of the ESI of 36 Amazon employees using 38 search strings, as proposed by plaintiffs. Using the approved search terms, defendants identified approximately 2 million potentially responsive documents. Within two weeks of the Court’s order, defendants notified plaintiffs that Amazon intended to use TAR tools to prepare its production, promising that they would “discuss these tools with Plaintiffs before beginning review.”

Two days later, plaintiffs objected, asserting that “[a]pplying TAR at this stage – after the parties have agreed to search terms as a basis for culling documents, and after the Court issued an order on search terms and custodians, is improper and impermissible”, arguing that it was too late to alter the protocol to produce ESI in this case. Defendants disagreed, insisting that the large number of retrieved documents necessitated the use of TAR to identify responsive, non-privileged documents, but plaintiff again objected to any effort “to use TAR to further review/filter the documents retrieved by the Court-ordered search terms.”

Judge’s Ruling

Considering the dispute, Judge Lasnik noted the plaintiff’s refusal to discuss TAR, stating: “While defendants’ discovery conduct has not been beyond criticism, the nub of this particular discovery dispute is that when Amazon raised the issue of using TAR, plaintiffs refused to discuss it. This was not a valid option given the circumstances. The parties had already agreed that an extension of the discovery deadline was needed: there was therefore time to exchange proposals regarding the use of predictive coding to improve the accuracy, speed, and efficiency of the document review Amazon was then undertaking. Courts generally agree that the producing party is best situated to evaluate the various options for reviewing and producing its own ESI and places the burden on that party to make an initial, detailed proposal about the technology and methodologies it intends to use…The requesting party then has an opportunity to consult with its own ESI discovery experts so that it can intelligently respond and the parties can move toward an agreed protocol for the use of TAR. By refusing to discuss the use of TAR at all, plaintiffs improperly short-circuited this process.”

Continuing, he added: “Plaintiffs suggest that the use of TAR on a pool of documents already retrieved through search terms is somehow improper because it ‘will only reduce the document pool further and will certainly not reveal documents that the application of search terms has precluded.’… But, as discussed above, the Model ESI Agreement in this district clearly contemplates using TAR to filter, not just locate, documents, and the ESI Agreement entered in April 2022 simply directs the parties ‘to confer to attempt to reach agreement on …appropriate computer- or technology-aided methodologies[ ] before any such effort is undertaken.’ The Court finds that the use of search terms is not, standing alone, a bar to using technology to further refine the production.”

Judge Lasnik rejected the plaintiff’s timeliness objection regarding defendant’s use of TAR. He also ruled on the plaintiff’s concern about the fact that the TAR process identified only 2,564 responsive documents out of an initial universe of 2,036,172, stating:

“Plaintiffs’ concern regarding the incredibly low production rate (less than 0.13% of the documents returned using the search terms) may be valid, but it does not appear to be related to Amazon’s use of TAR. Amazon’s initial proposal regarding how their TAR would work utilized an unacceptably low recall target of 75%…But as the process unfolded, Amazon continued its review after that rate was achieved, ultimately conducting a human review of over 1.8 million documents. When a sample of the remaining pool of unreviewed documents was analyzed, the human reviewers found no responsive documents. Thus, humans reviewed over 89% of the documents identified using the agreed-upon search terms and found that only 2,564 of them were actually relevant, responsive, and non-privileged. The 224,924 unreviewed documents are, according to the TAR methodology, the least likely to be responsive and, in fact, a human review of 1,527 of them revealed no responsive materials. Because humans reviewed the vast majority of the universe of documents and the statistical estimate of responsive documents remaining in the unreviewed documents is 0%, the estimated recall rate approaches 100% There is no reason to suspect that the low percentage of production is, as plaintiffs argue, the result of Amazon’s use of TAR versus human review.”

As a result, Judge Lasnik denied the plaintiff’s motion to prohibit the defendant from using TAR, due to the plaintiff’s refusal to discuss TAR, among other reasons.

So, what do you think? Do you agree with the Court that the plaintiff’s refusal to discuss TAR was a reason to deny the motion? Please share any comments you might have or if you’d like to know more about a particular topic.

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