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Litigants often disagree about which method of identifying potentially responsive electronically stored information (“ESI”) is best. Specifically, the use of keywords versus technology assisted review (“TAR”)
* is typically the topic of the debate. In deciding these disputes, Judges have seemingly embraced TAR as preferable, but stop short of mandating TAR’s use, citing to Principle 6 of The Sedona Principles (“Principle 6”) (“[r]esponding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own [ESI]”).
Three federal decisions addressing the topic of a litigant’s methodology for determining responsiveness are worth discussion.