Court orders are not known for giving out gold stars for handling electronic discovery. If there is a court order, it is usually because of a dispute. There is a big exception to this maxim: Electronic Discovery Case Management Orders.
The parties in MSR Tr. v. Nationstar Mortg., filed a Joint Electronic Discovery Submission, which was signed off as an order by US Magistrate Judge Robert W. Lehrburger. The case is a putative securities class action over the alleged breach of two mortgage servicing rights purchase and sale agreements and related counter-claims.
The Joint Statement recounted the parties had discussed search protocols for ESI in addition to the disclosure of that information. The parties listed the “best of” eDiscovery methodologies that included:
[T]he use and exchange of keyword search lists; hit reports, and/or responsiveness rates;
concept search;
machine learning;
or other advanced analytical tools;
limitations on the fields or file types to be searched;
date restrictions;
limitations on whether back-up, archival, legacy, or deleted electronically stored information will be searched;
testing; sampling; etc.
MSR Tr. v. Nationstar Mortg., 1:21-cv-3089-GBD-RWL, at *3 (S.D.N.Y. May 4, 2022).
The parties also identified their search and review strategies that included:
The scope of the search and production will be limited to a search of the relevant documents, email mailbox files, and other related information created and maintained electronically or in paper format, with each party searching their own electronic and hardcopy data sources. The parties will meet and confer to identify reasonable and mutually agreeable search terms, date restrictions, and custodians. The parties may use reasonable techniques to identify relevant documents including analytics and TAR (e.g. email threading, textual near duplicate analysis, conceptual search and clustering, categorization, machine learning, predictive coding , and other similar technologies).
This is a refreshing Joint Statement with parties that understand the importance of eDiscovery review applications. More importantly, they are not taking any options off the table for use, nor are they in the game of asking the other side for permission to use a specific technology (such as the predictive coding). It is also positive to see parties agreeing to meet and confer over search terms, date ranges, and custodians.
Hopefully these litigants will be able to focus on the subject matter of the lawsuit and not get sucked into motion practice over discovery. They look like they are off to a solid start on recognizing their options for searching electronically stored information.