United States: eDiscovery Update Including AI For Technology Assisted Review

My Guest Blogger Melinda F. Levitt is a partner and litigation lawyer with Foley & Lardner LLP. Melinda's practice focuses on complex commercial litigation, and has developed in-depth experience in complex electronic discovery matters and regularly publishes and speaks on a variety of eDiscovery developments and recommended best practices. She also is a member of the firm's eDiscovery & Data Management Practice.

A Shout-Out to Magistrate Judge Iain Johnston for a Balanced, Reasoned, Cogent and Funny Opinion on the State of eDiscovery in 2018

Any judge who begins an opinion about ediscovery with a quote from Donald Rumsfeld (of all people!), and then tosses in a reference to Marge from The Simpsons while quieting lawyers' fears of technology by noting that ediscovery is not scary, but clowns definitely are, is deserving of notice. But a judge who does all of that while simultaneously issuing a succinct opinion that cogently summarizes the state of the law on ediscovery as of 2018, and does so while balancing the pros and cons of different search technologies against the renewed call for proportionality in a "bet-the-company" case is deserving of hosannas from the ediscovery bar. Ladies and gentleman, I commend to you Magistrate Judge Iain Johnston and his opinion in City of Rockford v. Mallinckrodt ARD Inc., 2018 WL 3766673 (N.D. Ill. Aug. 7, 2018).

The opinion addresses discovery in two cases, consolidated for discovery purposes, in which plaintiffs allege that defendant Mallinckrodt engaged in racketeering and violated the antitrust laws when it suddenly increased by tens of thousands of dollars the price of a drug that treats a rare infant seizure disorder. Whether any of that is true is an issue for another day. What Judge Johnston was asked to decide is whether as part of the ediscovery protocol to be followed in the cases, Mallinckrodt should be required to conduct a statistically meaningful random sample review of documents that did not have any key word search term "hits" to determine if any of those documents actually were responsive to plaintiffs' document requests and, if so, to produce those documents and then engage in a further meet and confer process to determine if modification to the search terms used is warranted. In deciding the question in the affirmative, Judge Johnston, in a few short and well-researched pages:

  • Acknowledges and commends counsel on all sides for their level of cooperation addressing ediscovery matters even if one issue remained to be resolved. "The litigation so far is a solid example that zealous advocacy is not necessarily incompatible with cooperation." ( at *1.)
  • Reminds all lawyers that no document discovery, including in particular ediscovery, which can involves millions of pages of documents, is expected to be perfect. "[D]isclosure of documents need not be perfect. . . . If the Federal Rules of Civil Procedure were previously only translucent on this point, it should now be clear with the renewed emphasis on proportionality." ( at *3.)
  • Emphasizes that although TAR – technology assisted review – has received much attention and praise in recent years, key word searching remains a valid and respectable "best practices" method for conducting a search of ESI. "With the advent of TAR . . . there appears to be a growing chorus that key word searching is not best practices, and that TAR is the way to go. . . . But that view is not universally held for all cases at this time. . . . [K]ey word searching and even linear review are not necessarily unreasonable." ( at *3 citing numerous sources and articles.)
  • Explains that sampling of non-responsive documents – a/k/a the "null set" – typically is part of the TAR process and serves an important purposes, and one equally applicable to a review based on key word searching. "Validation and quality assurance are fundamental principles to ESI production. . . . [and] a random sample of the null set provides validation and quality assurance of the document production when performing key word searches." ( at *4.)
  • Considers various proportionality factors under Rule 26(b)(1) and determines that Mallinckrodt's bare-bones lament of expense and burdensomeness relating to null set sampling falls far short of demonstrating a disproportionate burden. "Defendants have failed to provide any evidence to support their contention [of expense and burden]. . . . [W]hen considering the other proportionality factors [complexity of issues in the case; substantial amount in controversy; asymmetrical discovery with defendants having access to vast majority of relevant information; defendants' substantial resources compared to plaintiffs], the Court is persuaded that a random sample of the null set is appropriate in this case." ( at *5.)
  • Offers to reconsider the proportionality factors and to entertain a possible cost-shifting request if the null set sampling exercise results in plaintiffs seeking more documents through expanded discovery. ( at *6.)

So – you may be thinking this is all well and good, but where is the reference to scary clowns? Answer: it is to be found in Judge Johnston's delightful and laudable footnote 2, which is deserving of being presented in its entirety.

The Court pauses here for a moment to calm down litigators less familiar with ESI. (You know who you are.) In life, there are many things to be scared of, including, but not limited to, spiders, sharks, and clowns – definitely clowns, even Fizbo. ESI is not something to be scared of. The same is true for all the terms and jargon related to ESI. Discovery of ESI is still discovery, governed by the same Federal Rules of Civil Procedure as all other civil discovery. Brown v. Tellermate Holdings, Ltd., No. 11 CV 1122, 2014 WL 2987051, at *, 2014 U.S. Dist. LEXIS 90123, at *4 (S.D. Ohio July 1, 2014) ("[T]he underlying principles governing discovery do not change just because ESI is involved."). So don't freak out. Having said that, the ethical rules now require attorneys to be competent with technologies such as ESI. ABA Model Rule 1.1, Comment 8 ("To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology..."). A good way for attorneys to increase their competency and comfort level with ESI is to review the educational materials available from the Seventh Circuit's Electronic Discovery Pilot Program. See www.discoverypilot.com. Attorneys can also familiarize themselves with ESI terms by referring to the Grossman-Cormack Glossary of Technology-Assisted Review. 7 Fed. Cts. L. Rev. 1 (2013); see also The Sedona Conference Glossary: E-Discovery & Digital Information Management, 15 Sedona Conf. J. 305 (2014). The Grossman-Cormack Glossary of Technology-Assisted Review is to ESI as Stedman's Medical Dictionary is to personal injury and Social Security disability litigation.

As to the Marge Simpson reference – well, go read the full opinion to find it. It is only seven pages long and well worth a full read.

Thank you Judge Johnston!

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