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    Court decisions protect a litigant’s right to choose eDiscovery methods

    December 7, 2016

    By William Belt, Director of Enterprise Development, CDS

    Getting litigants to cooperate in eDiscovery is a challenge, but forcing parties to use certain one-size-fits-all technologies is not the solution according to several recent court cases. Instead courts are affirming The Sedona Conference Principle No. 6, which expressly protects litigants’ rights to choose their own eDiscovery methods. At the core of this protection is the recognition that the parties know their own data sets and in conjunction with their eDiscovery experts are making appropriate decisions to manage their data.

    Sedona Principle No. 6 provides that “responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information (ESI).” This is true even if one technology seems to be better than another, such as Technology Assisted Review (TAR) and Predictive Coding over keyword searching.

    TAR and Predictive Coding capabilities have become increasingly prevalent and several courts have ruled that parties are allowed to use the technologies. However, that doesn’t mean that a litigant must use that technology. In a recent case from this summer, Judge Peck of the Southern District of New York issued an opinion in Hyles v. New York City, 2016 WL 4077114 (S.D.N.Y. Aug. 1, 2016), which addressed whether a party could be forced to use TAR or Predictive Coding. The court held that while parties are permitted to utilize TAR, they cannot be compelled to use it if they prefer a different method like keyword searching. Although the Judge stated that “for most cases today, TAR is the best and most efficient search tool,” he determined the Court would not force the City to use that method.

    Last month, another court agreed with Judge Peck. Judge Sallie Kim of the Northern District of California reached the same conclusion in In re Viagra (Sildenafil Citrate) Prods. Liab. Litig., 2016 U.S. Dist. LEXIS 144925 (N.D. Cal. Oct. 14, 2016). Judge Kim allowed the defendant, Pfizer Inc., to carry on with its plan to use search terms in an iterative process to identify potentially responsive documents and ESI. The case involves a dispute between Pfizer and the plaintiffs in the MDL action over Viagra. The plaintiffs asked the court to order Pfizer to utilize TAR or Predictive Coding and participate in a cooperative process with plaintiffs to develop a procedure that used TAR to identify potentially responsive documents and ESI. Judge Kim declined to issue such an order. While not mentioning the Sedona Principle, Judge Kim stated she agreed with Judge Peck that “the responding party is the one best situated to decide how to search for and produce ESI responsive to discovery requests.”

    In addition, Judge Kim also acknowledged plaintiffs’ argument that TAR and Predictive Coding might well be better, more efficient and more complete. However, she held that the responding party’s duty is not to achieve perfection or to use the best technology. The responding party’s duty is to meet its burden under Rule 26 to achieve proportional and reasonable results. Accordingly, evidence that TAR and Predictive Coding were better did not support the plaintiffs’ requested order. Instead, plaintiffs have to show that the responding party’s preferred method would produce, or has produced, insufficient discovery responses.

    The Sedona Principle No. 6 remains an important protection for litigants seeking to meet their already steep discovery burdens, especially in cases where meaningful cooperation is difficult to achieve. However, it’s not fool-proof. Parties may have their own reason for selecting particular methods of eDiscovery. So long as they are able to produce sufficient discovery responses, courts will defer to their judgement. However, courts will also look at the basis for the parties’ judgement, especially when those results are challenged. Both Judge Peck and Judge Kim noted the careful and thoughtful processes proposed by the responding parties, and Judge Peck specifically cites prior caselaw that focused on the importance of consulting with the right experts to help them run their keyword search processes. Those “early” keyword search cases were decided against the responding party based on the failure to consult experts. Most of us still quote Judge Facciolla’s observation that “for lawyers and judges to dare to opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread.” United States v. O’Keefe, 537 F. Supp. 2d. 14, 24 (D.D.C. 2008) (Facciola, M.J.).

    As Judge Peck stated in the Hyles decision, “[t]here may come a time when TAR is so widely used that it might be unreasonable for a party to decline to use TAR.” In the meantime, Principle No. 6 sets the standard when litigants work with appropriate experts.

    Contact us for a consultation regarding how we can help you best manage your eDiscovery.

    About the Author

    William Wallace Belt, Jr., Esq., Managing Director of Consulting, CDS New York

    Bill has 25 years of experience as a partner, shareholder and board member of AmLaw 200 law firms, including Williams Mullen where he built one of the first law firm eDiscovery practices.  His extensive experience as a trial lawyer, including trying to verdict over 20 jury trials, and his deep experience in legal technology including working with AmLaw 200 law firms, “Big Four,” and technology providers gives Bill’s clients access to a perspective built upon broad and unique experience, and a deep understanding of his clients’ business and legal technology needs and strategies.

         wbelt@cdslegal.com