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Judge will not order how to respond to ESI request
RICHARD WEINER
Technology for Lawyers
Published: December 9, 2016
A case from the Northern District of California featured a federal judge who was unwilling to order a party to use a specific electronically stored information (ESI) discovery technique—in this case, predictive coding to determine the location of responsive ESI.
The case was In re Viagra (Sildenafil Citrate) Prods. Liab. Litig., No. 16-md-02691-RS (SK), 2016 U.S. Dist. LEXIS 144925 (N.D. Cal. Oct. 14, 2016), brought to us by Josh Gilliland at Bowtie’s Blog.
Gilliland’s basic analysis concluded that, even though this decision conformed with the law, it may not be the best use of technology in cases like this.
The plaintiff wanted to force the defendant to use predictive coding to find responsive evidence among millions of documents. If the judge would have allowed this, it would have set a precedent—no judge had ever made such an order, according to the decision.
Plaintiff’s proposal was for the two parties to work together to formulate search terms. Defendant agreed with this in principle, but did not want their searches to be limited to only one technique.
Instead, defendant wanted to determine search terms, and then use a small sample set of documents to see how those terms worked in real time. Following that test run, the parties would negotiate additional search terms, etc. and then look for responsive ESI.
So the question here was: would the judge order a party to use a specific ESI technique? Or, said another way, can you control results of a search beforehand?
Nope.
The judge held that the producing party “one best situated to decide how to search for and produce ESI responsive to discovery requests.”
The time to determine whether or not that was a complete response is after, not before, the response was submitted.
Technically, search terms are only one tool to use for responding to an ESI request. At first glance, this looks to me like someone fell in love with a search technique that may or may not have been appropriate in real life, and then tries to limit the search to that, at, really, a cost to that person’s own side.
Gilliland wrote that real search involves as many conceptual approaches as technical ones. Limiting a search to one of those facets is the wrong approach.
Read the case!