Proportionality, reasonableness and a defensible process are hallmarks of an efficient and cost effective document review and production. While these concepts have been enshrined in the Sedona Canada principles and the Ontario Rules for several years, they are also being recognized south of the border.
In FHFA v. HSBC N. Am. Holdings, Inc., et al., Nos. 11 Civ. 6189, 6190, 6193, 6195, 6198, 6200, 6201, 6202, 6203, 6739, and 7010 (DLC) (S.D.N.Y.), Judge Denise Cote recognized that the margin of error using technology-assisted review (predictive coding) is no worse than traditional manual review. TAR, therefore, is an acceptable method for finding relevant records. Acknowledging that both predictive coding and traditional manual review “fell well short of identifying for production all of the documents the parties in litigation might wish to see,” the court emphasized that perfection in discovery is neither attainable, nor required. Judge Cote found that good faith production (through traditional manual review or predictive coding) should be sufficient to create “a reliable factual record.”
Perfection is not the yardstick. Reasonableness is.