eDiscovery Daily Blog
Defendant Not Required to Use Predictive Coding by Court: eDiscovery Case Law
Regardless how the election turned out last night, eDiscovery case law marches on…
In the case In re Viagra Products Liability Litigation, 16-02691 (N.D. Cali., Oct. 14, 2016), California Magistrate Judge Sallie Kim, noting that other courts had declined to force a party to use predictive coding, denied the plaintiff’s motion to force the defendant to use predictive coding instead of its preferred approach using search terms.
In this multi-district litigation (MDL) against drug company Pfizer regarding its highly popular drug Viagra and alleged correlations to incidences of melanoma, the plaintiffs urged the Court to order the defendant to use predictive coding with the plaintiffs’ input to identify the locations of relevant information and the responsive ESI from those locations. The plaintiffs argued that TAR and/or predictive coding is a more sophisticated tool than the traditional search term or search query approach, that using that suggested approach would save time and money for both sides and indicated that they wanted representatives from both parties to participate in process of creating and working with the search process in this iterative process.
The defendant offered stiff opposition to the plaintiff’s request (sorry, I couldn’t resist) proposing instead that it use search terms to identify potentially relevant documents. The defendant described its preferred methodology as an iterative process – though not the same iterative process as TAR and/or predictive coding – where the defendant tests search terms and validates them using rigorous sampling of potentially responsive documents, verifying that the search terms yield high rates of response. In the defendant’s proposed process, the parties would exchange lists of proposed search terms and the defendant would agree to run any search terms that appeared on both parties’ lists.
The defendant pointed out that the plaintiffs did not cite to any case law in support of their proposal to require the defendant, over its objection, to use TAR and/or predictive coding. At the hearing on the matter, the plaintiffs conceded that no court has ordered a party to engage in TAR and/or predictive coding over the objection of the party.
Adding to the plaintiff’s concession, Judge Kim noted that “[t]he few courts that have considered this issue have all declined to compel predictive coding”. Judge Kim cited Hyles v. New York City, stating:
“As the court reasoned in Hyles, the responding party is the one best situated to decide how to search for and produce ESI responsive to discovery requests. The responding party ‘can use the search method of its choice. If [the propounding party] later demonstrates deficiencies in the . . . production, the [responding party] may have to re-do its search. But that is not a basis for Court intervention at this stage of the case…[I]t is not up to the Court, or the requesting party . . ., to force the . . . responding party to use TAR when it prefers to use keyword searching. While [the propounding party] may well be correct that production using keywords may not be as complete as it would be if TAR were used . . ., the standard is not perfection, or using the ‘best’ tool . . ., but whether the search results are reasonable and proportional.”
In denying the plaintiffs’ motion, Judge Kim concluded: “The Court finds Hyles well-reasoned. Even if predictive coding were a more efficient and better method, which Pfizer disputes, it is not clear on what basis the Court could compel Pfizer to use a particular form of ESI, especially in the absence of any evidence that Pfizer’s preferred method would produce, or has produced, insufficient discovery responses.”
So, what do you think? Should a court ever require a party to use a particular method to search for and produce ESI? Please share any comments you might have or if you’d like to know more about a particular topic.
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