TAR Makes ESI Protocols Sticky

Magistrate Judge Virginia Demarchi issued an order over parties disagreeing about predictive coding and search in an ESI Protocol. The disagreement began with or not to include Sedona Principle No. 6 in the proposed protocol. For reference, that principle states:

“Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.” 

Klein v. Facebook, Inc., 20-cv-08570-LHK (VKD), at *1 (N.D. Cal. Sep. 15, 2021).

The Court did not require the ESI Protocol to include Sedona Principle No. 6 and would not require the parties to agree to it in the abstract. Id.

The use of TAR was once again a sticking point for the parties. The Court stated “…any party may use TAR, predictive coding, or other machine learning tools to identify relevant and responsive documents for production and/or to exclude documents that are not relevant and responsive. ” Klein, at *1.

The Court did not order any of the parties to adopt a specific type of TAR application. However, and it is a big however, the parties had to disclose their intent to use a TAR application AND how that TAR application would be used with search terms. Furthermore, any party using TAR would “be prepared to defend the sufficiency of the resulting document production if another party contends that the production is insufficient, just as it would if the party had chosen not to use such a tool. ” Id.

Bow Tie Thoughts

ESI Protocols cannot be a Napoleonic Code foreseeing every possible situation that can happen in discovery. Parties need to find the balance between working guidelines that avoid embracing wimp words that mean nothing or being so structured that nothing can be done.

The main issue with any discovery dispute is whether or not a production is adequate, sufficient, or reasonable. In discovery disputes over the adequacy of a production, the challenging party must prove the production is unreasonable or inadequate. See generally, Terry v. Register Tapes Unlimited, 2018 U.S. Dist. LEXIS 50846, at *6-7 (E.D. Cal. Mar. 26, 2018).  Additionally, the main question for producing ESI is one of reasonableness and not perfection. Chen-Oster v. Goldman, Sachs & Co., 285 F.R.D. 294, 306 (S.D.N.Y. 2012), citing The Sedona Conference, The Sedona Conference Database Principles: Addressing the Preservation and Production of Databases and Database Information in Civil Litigation, March 2011 Public Comment Version, at 32.

The challenge with arguing over Technology Assisted Review while drafting an ESI Protocol is that no party has actually done a production yet. The fact Judge Demarchi told the parties they need to be defend their future production is a not so subtle reminder to make sure a production is reasonable.