With 2019 just upon us, it is a great time to look back on last year’s most influential eDiscovery cases.  Part three of this four-part series discusses impactful decisions concerning search and retrieval.

There is an ongoing debate over how transparent parties need to be when using technology assisted review (TAR) for discovery. Technology assisted review tools like predictive coding and keyword search can be crucial as well as controversial in a party’s eDiscovery efforts. The Federal Rules of Civil Procedure does not require perfection in any ESI review – instead, the producing party must take reasonable steps to ID and produce relevant documents. Courts should not insert themselves as ‘super-managers’ of the parties’ internal review processes or permit discovery about the processes absent evidence of good cause – such as a showing of gross negligence, failure to produce documents known or likely to exist, or other malfeasance.

In the housing discrimination matter, Winfield v. City of New York, No. 15-cv-05236, 2017 WL 5664852 (S.D.N.Y. Nov. 27, 2017), the plaintiffs sought additional documents from custodians. The City of New York was ordered by the court to collect these documents. The court directed the City to use TAR given the volume of documents collected. The City later agreed to add additional search terms requested by the plaintiff if they could use TAR to reduce the 90,000 additional results. Plaintiffs objected that they were concerned about the reliability of the City’s predictive coding processes, contending the City allegedly over designated documents as privileged and non-responsive resulting in an improperly trained tool. To increase transparency in the City’s document review, the plaintiffs sought production of random samples, including non-responsive materials, and documentation on the City’s predictive coding process.

The court ordered the City to submit a letter for in camera review describing its predictive coding process. In camera submissions show the city appropriately trained and utilized its TAR system. Despite concluding the process was not defective, the court granted the plaintiffs’ request for sample sets of non-privileged documents to increase transparency in light of the volume of documents collected, low responsiveness rate, and examples presented by the plaintiffs which suggested possible human error in categorization.

In re Broiler Chicken, No. 16 C 8637, 2018 WL 1146371, also involved complex discovery in which the Special Master issued an ESI Order outlining the document sourcing, search, and validation methods to be used by the parties. The order established that parties will be reasonably transparent regarding the universe of documents collected, the search terms utilized, and the processes applied for TAR.

Carpenter v. US, 585 U.S. (2018), looks at whether law enforcement officials can secure cell-site location information (CSLI) without a warrant issued on probable cause. After the FBI identified cell phone numbers of several robbery suspects, prosecutors were granted court orders to obtain the suspects’ cell phone records under the Stored Communications Act (SCA). Wireless carriers produced CSLI for Timothy Carpenter’s phone, and the government obtained 12,898 location points cataloging his movements over 127 days. Carpenter moved to suppress the data, arguing that the government’s seizure of the records without obtaining a warrant supported by probable cause violated the Fourth Amendment.

The district court denied the motion, and prosecutors used the records to show that Carpenter’s phone was near four of the robbery locations at the time of the robberies. Carpenter was convicted. The Sixth Circuit affirmed, holding that Carpenter lacked a reasonable expectation of privacy in the location information collected by the FBI because he had shared that information with his wireless carriers. The Supreme Court reversed the decision of the Sixth Circuit and remanded the case, holding that a warrant is necessary to obtain CSLI in the absence of an exception such as exigent circumstances.

As the accuracy of CSLI rapidly approaches GPS-level precision, historical cell-site records present even greater privacy concerns. They give the government near perfect surveillance and allow it to retrace a person’s whereabouts. However, some exceptions apply. Even though the government will generally need a warrant to access CSLI, case-specific exceptions—e.g., exigent circumstances—may support a warrantless search.

Stay tuned for the next topic – possession, custody, and control.