Gordon v. Kaleida Health, 2013 WL 2250579 (W.D.N.Y. May 21, 2013).
In this action brought under the Fair Labor Standards Act, the plaintiffs motioned for a court order requiring the parties to meet and confer on the protocol to be used to analyze ESI regarding unpaid overtime wages. Prior to the motion, the parties had substantial disagreement on how to review the large volume of the defendants’ e-mails. After lengthy and unsuccessful attempts to implement a protocol using keyword searches, the court suggested Technology Assisted Review and enforced a discovery deadline on both parties. The defendants submitted their review protocol utilizing Technology Assisted Review, and the plaintiffs objected, claiming that the defendants were uncooperative and excluded information relating to the selection of the “seed set” of documents used to train the computer. The defendants maintained that they had no objections to a meet and confer conference, but merely objected to meeting with the plaintiffs’ suggested ESI consultants, who previously provided services for the defendants in the same case. Furthermore, the defendants contended that the court should not compel production of specific details, such as the selection of a seed set, when the defendants were willing to provide such information in a meet and confer conference. The court found that the plaintiffs’ proposed consultants were not disqualified, but ultimately sided with the defendants, dismissing the plaintiffs’ motion to compel as unnecessary for the time being.