Play Nice: Recent eDiscovery Decision Emphasizes Consistent Cooperation

by Ropes & Gray LLP
Contact

In the weeks since Magistrate Judge Leen denied a late request to use predictive coding in a case before her, the e-discovery world is still abuzz over certain language included in her ruling. In the case in question, Progressive Casualty Insurance v. Delaney, 2014 WL 2112927 (D. Nev. May 20, 2014), Progressive had implicitly agreed to transparency when it agreed to partake in an extensive joint ESI protocol, including detailed agreement on search terms. The court found that Progressive violated this agreement when it unilaterally reversed course and applied predictive coding. And for this dissonant approach to cooperation, it paid dearly. Any practitioner considering predictive coding[1] should fully consider the judge’s reasoning and the potential pitfalls associated with failure to consistently cooperate. 

The Progressive parties had submitted a Joint Proposed ESI Protocol, which the court approved. Pursuant to the Protocol, Progressive applied search terms to the documents it collected, narrowing the number of documents requiring manual review from 1.8 million to 565,000. Progressive then used contract attorneys to review 125,000 of the 565,000 “hit” documents. At that point, Progressive determined that manual review of the remaining documents would be too time-intensive and expensive. Unilaterally, Progressive decided to apply predictive coding to the remaining 440,000 documents. When Progressive later sought permission to amend the ESI Protocol to allow for predictive coding, the court firmly rejected Plaintiff’s amended proposal, stating that it lacked the “unprecedented degree of transparency and cooperation among counsel” that cases approving the use of technology-assisted review have “required.” Id. at 10. Instead, the court granted FDIC’s motion to compel and ordered Progressive to produce all 565,000 “hit” documents, without review for relevance (a privilege screen was allowed).

The takeaway from Progressive should not be that predictive coding cases require complete transparency on the part of producing parties. Instead, e-discovery practitioners should be mindful throughout the discovery process of the parameters and implications of their cooperation efforts, and avoid creating unreasonable limitations for themselves.

When it comes to discovery, cooperation is the new black. Many judges have signed the Sedona Cooperation proclamation, and courts as well as commentators have urged parties to cooperate on various issues throughout the discovery process. Most authorities agree that “failure to engage in cooperative discovery is likely to increase the costs, and complexity, of litigation to the detriment of everyone involved.” Paul W. Grimm & Heather Leigh Williams, ‘The [Judicial] Beatings Will Continue until Morale Improves’: The Prisoner’s Dilemma of Cooperative Discovery and Proposals for Improved Morale, 43 U. Balt. L. F. 107, 115 (2013). Cooperative discovery involves not just refraining from abusive practices, but also developing, testing, and agreeing on the nature and scope of information sought (to the extent consistent with clients’ interests). The Sedona Conference, The Case for Cooperation, 10 Sedona Conf. J. 339, 339 (2009 Supp.).

Parties may find it challenging, however, to put these principles into action. Progressive illustrates that even when parties cooperate to develop extensive ESI protocols at the beginning of a case, they may find later that another technology would be more useful. As the producing party, Progressive might have had more room to determine the best approach had the ESI Protocol allowed a flexible approach, permitting certain judgment calls by the producing party.  See, e.g. The Sedona Conference, The Sedona Principles: Second Edition Best Practices Recommendations & Principles for Addressing Electronic Document Production (June 2007), Principle 6 (“Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.”).

Nor have the courts been entirely clear about the degree of cooperation required. The Progressive court did not define what it meant by “unprecedented degree of transparency and cooperation,” but it is debatable that any court has actually mandated the transparency this court assumed to be consistent across federal courts. For example, in both Da Silva Moore v. Publicis Groupe, 2012 WL 607412 (S.D.N.Y. Feb. 24, 2012) and In re: Actos, 2012 WL 7861249, MDL No. 6:11-md-2299 (July 27, 2012), the courts praised the parties’ agreement to share protocols and seed sets (documents used to train the predictive coding tool), but did not order it. Even in In re Biomet M2a Magnum Hip Implant Prods. Liability Litig., No. 3:12-MD-2391 (N.D. Ind. Aug. 5, 2013), where the court urged the parties to cooperate, the court recognized that cooperation has limits and refused to order the sharing of seed sets. Biomet at *2. 

Undoubtedly, the courts’ reluctance to order full transparency stems, as it should, from the fact that full transparency would give the opposing party access to attorney work product. In recent cases, courts have found that a variety of documents comprise opinion work product and need not be produced: documents related to methods for review and retention, S.E.C. v. Schroeder, No. C07-03798 JW (HRL), 2009 WL 1125579, at *12 (N.D. Cal. 2009); attorney’s instructions on how to conduct a computer search, Lockheed Martin Corp. v. L-3 Comm. Corp., No. 6:05-CV-1580-Orl-31KRS, 2007 WL 2209250, at *10 (M.D. Fl. July 29, 2007); and compilations of documents organized by legal theory, Kodak Graphic Comm.’s Canada Co. v. E.I. du Pont de Nemours & Co., 2012 WL 413994, at *4 (W.D.N.Y. Feb. 8, 2012).

Even more basic, requiring parties to disclose seed sets containing irrelevant documents “reaches well beyond the scope of any permissible discovery by seeking irrelevant or privileged documents.” Biomet at *2. The reason to deny such requests “seems self-evident,” considering that Federal Rule of Civil Procedure 26(b) limits the scope of discovery to relevant, nonprivileged matters. Id. at *1. Judge Richard G. Andrews of the District Court of Delaware also recognized that sharing seed sets would be a significant and unjustified departure from current discovery practices: “[w]hy isn’t it something where they answer your discovery however they choose to answer it…? How do you get to be involved in the seed batch?” Transcript of Discovery Dispute at 16, Robocast, Inc. v. Apple, Inc., No. 11-235 (D. Del. Dec. 5, 2012).

Another aspect of the Progressive case is troubling. The court criticizes Progressive for going forward with predictive coding in a manner inconsistent with the vendor’s “best practices.” The court does not elaborate on what specific “best practices” those are, but one could read that the court is referring to the vendor’s preference to load “all” data collected before applying predictive coding. That technique is much debated among experts and certainly has not been established as a best practice across the board. If the Progressive case holds that when a party uses predictive coding, all data must be loaded, without first culling using search terms, then the ruling is indeed problematic. Courts should not adopt this method as a gold standard unless experts reach some consensus on general methodology. Moreover, such consensus would have to allow for significant variations among vendor tools, case-specific needs and facts.

In the context of the existing case law, the language in Progressive is best read as a frustrated court’s response to Progressive’s unilateral decision to use predictive coding, despite a pre-existing joint Protocol with no such provision. Rather than taking Progressive as a signal that complete transparency has become mandatory, litigants should continue to explore what practices are best for each case, and continue to evaluate the most appropriate and defensible way to incorporate each vendor’s tool into their discovery workflow.


[1] Because the court used the term “predictive coding” instead of “technology-assisted review,” this article will use the term chosen by the court.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ropes & Gray LLP | Attorney Advertising

Written by:

Ropes & Gray LLP
Contact
more
less

Ropes & Gray LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!