eDiscovery Daily Blog

Don’t Be “Chicken”! Consider Having a Good Protocol for Handling eDiscovery: eDiscovery Case Week

We’re getting a head start on next week’s shark week, er, case week here on the blog!  With that in mind, we’re catching up on a couple of cases leading up to our webcast on Wednesday where Tom O’Connor and I will be talking about key eDiscovery case law for the first half of 2018.  With that in mind, let’s discuss the most notable search methodology order having to do with broiler chicken litigation ever!

In the In re Broiler Chicken Antitrust Litigation, No. 1:16-cv-08637 (N.D. Ill. Jan. 3, 2018), Illinois Magistrate Judge Jeffrey Gilbert appointed a special master (noted Technology Assisted Review expert Maura Grossman) to help the parties resolve eDiscovery disputes.  Judge Gilbert and Special Master Grossman issued a very detailed procedure (Order Regarding Search Methodology for Electronically Stored Information) for how the parties were to conduct TAR, including search, validation and document sourcing approaches, split into three primary sections: (1) how the parties will act, (2) what search technologies will be used, and (3) an outline of a document review validation protocol.

In this class action lawsuit filed on September 2016, the plaintiffs alleged that companies in the broiler chicken industry were colluding to limit the supply of chickens to raise, by almost 50%, the prices consumers would need to pay for chicken.  In February 2017, the plaintiffs filed their first set of requests for production.  With 3 putative plaintiff classes, nearly 30 defendants, multiple theories of liability, and activity covering close to ten years in a $20 billion plus dollar industry, Judge Gilbert appointed Special Master Grossman in October 2017 to address and resolve disputes regarding eDiscovery, which led to this order right after the first of the year.

The order set forth expectations with regard to:

  1. Transparency and the use of culling technologies prior to search, including de-duplication, email threading, email domains, targeted collections, exception reporting and other culling;
  2. Search methods, divided into “TAR/CAL” (Technology Assisted Review/Continuous Active Learning) and Keyword Search Processes;
  3. Document review validation protocol involving specifications for QC sampling, regardless whether TAR or “exhaustive manual review” was used.

The Order also included an appendix, detailing the recall estimation method for a review process involving TAR as well as the method for manual review.

In terms of a model protocol to not only cover how to conduct TAR and/or keyword search, but manage eDiscovery in general, this is a terrific protocol which will certainly be referenced for some time to come.

So, what do you think?  Have you been involved in a case where the court ordered a protocol for managing eDiscovery?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

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