Fed. Dist Court in NY Finds No Gross Negligence or Unreasonableness in City’s Technology Assisted Review in Disparate Impact and Racial Discrimination Fair Housing Act Case

As pertinent to this case, New York City residents seeking affordable housing and meeting the qualifications can apply for certain affordable housing units through a lottery system. Through this Community Preference Policy, 50% of the affordable housing units are set aside, which are distributed through the lottery for people living in the “community district” where the housing is located. Plaintiffs, three African-American residents of New York City, sought affordable housing and applied for housing through lotteries, but were not selected to be interviewed for affordable housing developments. Plaintiffs claimed that the Community Preference Policy had a disparate impact on African-American and Latino applicants in “neighborhoods of opportunity,” which they alleged were predominantly white. Plaintiffs also contended that the Community Preference Policy perpetuated racial segregation in the City and that its application constituted intentional discrimination in violation of the federal Fair Housing Act and the New York City Human Rights Law.

In this case, Plaintiffs sought an order directing the City to provide samples of non-privileged documents collected from the Department of Housing Preservation & Development (“HPD”), the Mayor’s Office, DCP, and Banks that the City designated as “non-responsive” in its review. Plaintiffs also provided 665 additional search terms to be applied to the DCP/Banks review population. In response, the City stated that although the supplemental search would require review of 90,000 additional documents at a cost of approximately $248,000, it was willing to use all of Plaintiffs’ proposed search terms and use Technology Assisted Review (“TAR”). Plaintiffs objected, contending that the City’s Technology Assisted Review (“TAR”) processes were flawed as the processes result in the over-designation of documents as non-responsive.
Despite this contention, the court found no evidence of gross negligence or unreasonableness in the City’s TAR training or review processes. Here, Plaintiffs failed to identify anything in the TAR process itself that was inherently defective, and attributed the categorization of a small subset of documents as responsive or non-responsive to human error. The court further noted that, in this case, the City had produced over 12,500 documents that were all designated as responsive. Moreover, the City’s validation process, which had been described to the court in the City’s in camera submission, supported the conclusion that the errors identified by Plaintiffs would not have affected the City’s TAR processes in any meaningful way . Despite the court rejecting Plaintiffs’ assertions that the TAR process as a whole was defective, it found that Plaintiffs had presented sufficient evidence to justify their request for sample sets of non-privileged documents from the documents pulled from the 50 custodians.

Winfield v City of New York. 2017 WL 5664852 (SDNY 11/27/2017)