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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.