August 01, 2025
Lucy Robinson, Right Discovery Staff Writer
We recently had the privilege of interviewing the Honorable Judge Andrew J. Peck about his insights on some monumental cases in eDiscovery. He quickly mentioned what he calls the “TAR Trilogy.” Intrigued, I asked for more details, and he shared the stories of three revolutionary cases he presided over that fundamentally changed how courts and legal professionals view TAR.
Today, August, 01, 2025 marks nine years since Judge Peck denied Hyles’ application to force the City of New York to use TAR in their discovery, shaping the third and final pillar to the “TAR Trilogy.” As we mark this anniversary, we recognize these landmark cases and the lasting impact they have had on the integration of technology in the discovery process for legal professionals.
TAR
Technology-assisted review¹, or TAR, can also be referred to as computer-assisted review (CAR) or predictive coding, so it’s easy to get confused when looking into its functions in the discovery process.
TAR 1.0, developed in 2010, classifies documents using input from expert reviewers to expedite organization and prioritization. It involves creating a "seed set" of documents for initial classification. The system then independently analyzes the remaining dataset, identifying relevant documents with high confidence. This reduces manual review time and improves efficiency compared to traditional methods.
TAR 2.0, developed a few years later, represents an evolution by incorporating advanced algorithms and unsupervised learning, reducing dependency on human input. Instead of a seed set, TAR 2.0 uses dynamic learning to identify patterns and relevance across documents automatically through “continuous active learning” (CAL). TAR 2.0 ensures critical content is quickly identified, streamlining eDiscovery and reducing costs.
The TAR Guru Himself
The Honorable Andrew J. Peck² is a distinguished figure in the legal community, with a career spanning several decades as a United States Magistrate Judge for the Southern District of New York. Before the TAR Trilogy, Judge Peck was asked to be a keynote speaker to discuss the techniques and developments of TAR, prompting him to research the process more than any Judge had done before. He published an article two months prior to the first case of the TAR Trilogy entitled, “Search, Forward³” in which he explored the integration of computer-assisted coding into the discovery process, comparing it to manual review and keyword searches. After reviewing recent research studies, Judge Peck concluded that computerized searches are at least as accurate, if not more so, than manual reviews.
Given his expertise and pioneering work on TAR, Judge Peck was exceptionally qualified to oversee the TAR Trilogy cases, making his statements all the more credited in its impact on the use of TAR in eDiscovery.
1. Da Silva Moore v. Publicis Groupe & MSL Group
Monique Da Silva Moore⁴ was one of five women who sued Publicis Groupe and its PR subsidiary, MSL Group, in 2011 for gender and pregnancy discrimination. Judge Peck was referred to the case for general pretrial supervision. During the first discovery conference, both parties’ counsel discussed an "electronic discovery protocol," as Da Silva Moore’s counsel was hesitant to use TAR to review approximately three million electronic documents.
While not opposed to TAR, Da Silva Moore’s counsel had concerns about how MSL planned to implement predictive coding and needed clarification. After months of discussions, Judge Peck ruled on February 17, 2012, that TAR was appropriate for this case, deeming it acceptable for handling large data volumes and ensuring that its burdens did not outweigh its benefits under FRCP regulations.
This ruling marked the first official court endorsement of TAR and Judge Peck’s approval paved the way for wider acceptance of TAR in eDiscovery, helping legal professionals see its potential as a valuable tool.
2. Rio Tinto Plc v. Vale S.A.
In April 2015, one of the world’s leading mining companies, Rio Tinto⁵, brought several competitors, including Vale, to court over allegations of fraudulent conspiracy and corruption. Both parties independently chose to use TAR in the discovery process. Judge Peck seized this opportunity to elaborate his stance regarding TAR.
Judge Peck made it a black letter law⁶ that courts should honor a producing party’s request to use TAR, noting that parties no longer needed permission from the judge or the opposing party to implement it. In common law legal systems, black letter laws are well-established legal rules that are clear, certain, and no longer subject to dispute. These laws are widely recognized and free from doubt.
Judge Peck emphasized that while transparency and cooperation are vital, sharing seed documents are not always necessary in discovery.
He asserted that TAR should not be held to a higher standard than keywords or manual review.
Lastly, Judge Peck reinforced the opinion that no single protocol fits every TAR project and that approval in one case does not imply endorsement of any specific tool or vendor in another.
Although the Rio Tinto case didn’t ignite a major debate on TAR, it allowed Judge Peck to reaffirm his position post-Da Silva Moore, offering clearer guidance on TAR protocols and standards.
3. Hyles v. City of New York et al
One year after Rio Tinto, Judge Peck presided over the Hyles v. New York City⁷ case, which significantly influenced the application of TAR in litigation. Pauline Hyles sued the city for racial discrimination at her New York City Finance Department job, leading to a protracted discovery phase. Delays arose from a pending motion to dismiss and the lack of initiative by counsel to advance the case. When discovery finally commenced, the court was riddled with disagreements
Hyles and the city clashed over the discovery date range, the number of custodians, and the use of TAR. While Hyles’ counsel proposed TAR as a cost-effective and efficient method for obtaining electronically stored information, the city declined, doubting the parties' ability to cooperate sufficiently. Judge Peck acknowledged TAR's superiority to keyword searches but upheld the city’s decision, citing his Rio Tinto position that producing parties have the freedom to choose their discovery methods. He noted that while cooperation is crucial in eDiscovery, it does not grant the court or the requesting party the power to mandate TAR. The Hyles case highlighted the importance in the autonomy of producing parties in choosing their methods, leaving TAR as an option rather than a requirement.
Transformation of TAR
The TAR Trilogy represents a pivotal moment in the evolution of eDiscovery, marked by Judge Peck's courageous and forward-thinking decisions. By endorsing TAR, Judge Peck not only clarified the tool's application and benefits but also set important precedents for its use in complex litigation.
Judge Peck's willingness to embrace and endorse TAR, despite the hesitations and uncertainties surrounding it, has paved the way for its broader acceptance. His leadership has shown that, when applied thoughtfully, TAR can be a powerful tool in managing large-scale electronic discovery. As legal professionals continue to navigate the evolution of eDiscovery technology, Judge Peck's pioneering support for AI has paved the way for a greater acceptance of the opportunities new technologies bring to the legal field.
References:
¹ Socha, George. “What is Technology Assisted Review?” Reveal, 5 Mar. 2021, https://www.revealdata.com/blog/technology-assisted-review
² “Andrew Peck: DLA Piper.” Andrew Peck | DLA Piper, www.dlapiper.com/en-us/people/p/peck-andrew-j.
³ Peck, Andrew. “Search, Forward.” Deliverables, 1 Oct. 2011, judicialstudies.duke.edu/sites/default/files/centers/judicialstudies/TAR_conference/Panel_1-Background_Paper.pdf.
⁴ “Moore v. Publicis Groupe 287 F.R.D. 182 (S.D.N.Y. 2012).” eDiscovery Assistant, app.ediscoveryassistant.com/case_law/17694-da-silva-moore-v-publicis-groupe.
⁵ Pappas, Constantine. “More Da Silva: 3 Takeaways from Judge Peck’s ‘rio Tinto’ Opinion: Relativity Blog.” Relativity, 10 Mar. 2015, www.relativity.com/blog/more-da-silva-3-takeaways-from-judge-pecks-rio-tinto-opinion/.
⁶ “Blackletter Law.” Legal Information Institute, Legal Information Institute, www.law.cornell.edu/wex/blackletter_law. Accessed 1 Aug. 2024.
⁷ “Hyles v. City of New York et al, No. 1:2010CV03119 - Document 97 (S.D.N.Y. 2016).” Justia Law, 1 Aug. 2016, law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2010cv03119/361399/97/.
Topics: TAR, technology-assisted review, computer-assisted review, predictive coding, TAR 1.0, TAR 2.0, continuous active learning, Judge Andrew J. Peck, Da Silva Moore v. Publicis Groupe, Rio Tinto v. Vale, Hyles v. City of New York, eDiscovery best practices, judicial leadership, discovery protocols, seed set, AI in litigation, legal technology, document review efficiency, cost-effective discovery, black letter law, producing party autonomy, transparency, cooperation in discovery, legal innovation, FRCP Rule 26, predictive algorithms, data prioritization, manual vs. machine review, evolution of eDiscovery, legal precedent, digital transformation in law