This is Part 2 of a multi-part blog series reviewing case law discussing predictive coding in eDiscovery.
In Part 1, we reviewed Monique da Silva Moore, et al., v. Publicis Groupe SA & MSL Group, No. 11 Civ. 1279 (ALC)(AJP) (S.D.N.Y. Feb. 24, 2012), the first case in which the use of predictive coding was judicially approved. In this Part, we turn our attention to Kleen Products LLC, et al., v. Packaging Corporation of America, et al., No. 10 C 5711 (N.D. Ill. Aug. 21, 2012).
The Kleen Products case is a consolidation of a series of actions alleging anticompetitive behavior by various participants in the containerboard industry (the material from which corrugated boxes, etc., are made). Discovery in the consolidated case began in January 2011, but as of December 2011, unresolved discovery issues still remained between the parties, including the issue of search methodology.
The Defendants wanted to use a Boolean search method and had engaged outside consultants for that purpose and begun work. Over several months during 2011, the Defendants and their consultants had iteratively tested and refined search terms to be used, using sampling to measure the results. The Defendants contended that their Boolean search process would be tested and validated to ensure accuracy as good as, or better than, predictive coding or any other option.
The Plaintiffs criticized Boolean search methods as inherently inadequate and flawed and lobbied the Court for the Defendants to be required to use “content-based advanced analytics” – also known as predictive coding. The Plaintiffs argued that the Defendants’ searches would be likely to find less than 25% of the responsive documents, while a predictive coding solution would be likely to find more than 70% of them, at no greater cost than the Defendants’ proposed methodology. The Plaintiffs also criticized specific details of the Defendants’ sampling and validation methodologies.
Hearings were held on February 21st and March 28th, 2012 at which witnesses testified regarding the proposed search tools and methodologies. Rather than directing the parties to adopt a particular resolution to this issue, the Magistrate Judge emphasized her support for Sedona Principle 6, which states:
Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information. The Sedona Principles: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, Second Edition.
The Magistrate Judge then urged the parties, in light of this principle and the extensive work already completed by the Defendants, to consider whether the Defendants’ Boolean search methodology might be refined or supplemented in some way that would satisfy the Plaintiffs without scrapping all of the work done by the Defendants or forcing her to decide the issue.
For five months after these hearings, the parties continued to meet with each other and with the Magistrate Judge about this and other issues, and in August of 2012, the parties reached an agreement regarding search methodology for the first phase of discovery. For all discovery requests propounded before October 1, 2013, the Plaintiffs dropped their demand for the Defendants to employ predictive coding and agreed to accept the Defendants’ use of their Boolean search methodology. This agreement was memorialized in a “Stipulation and Order Relating to ESI Search” issued by the Magistrate Judge on August 21, 2012, as an attachment to her “Memorandum Opinion and Order” of that date.
The parties’ agreement foreclosed the possibility of an order like Magistrate Judge Peck’s in Moore. There is no judicial decision here explicitly approving predictive coding or any other search methodology. The case is still important, however, for three reasons.
First, the transcripts of the hearings include extensive discussion of, and testimony about, predictive coding, Boolean searching, and validation methodologies, all of which is educational and worth reading:
- February 21, 2012 Hearing Transcript
- March 28, 2012 Hearing Transcript (Exhibit A to Joint Status Conference Report No. 3)
Second, it’s important for the emphasis the Magistrate Judge places on Sedona Principle 6. Although she did not have to choose a methodology for the parties, she seems to suggest that she would have deferred to the Defendants on the issue, if the parties could not cooperate. At the March 28th hearing she said:
“I am a believer of principle 6 of Sedona, and I’m not just because it’s Sedona, but I think the people who are producing the records, producing the documents, are in a better position to know [emphasis added], since they have to do the work, spend the money, spend the time, they know their people, they know their material, so as a basic premise, I think that’s a pretty fair premise here.”
This idea, that producing parties are in the best position to judge methods for production, is an important one that will come up again in later predictive coding cases.
Third, it’s important for the emphasis the Magistrate Judge places on the results and their validation rather than the tool or process used to achieve them. Also at the March 28th hearing, the Magistrate Judge said of the predictive coding topic that she would “. . . almost call it a detour . . . .” She went on to say, to the Plaintiffs:
“I assume . . . what you really are interested in is a search, regardless if it’s Boolean or computer-assisted [emphasis added], that is fair and statistically – and that can be validated statistically because that would be a good word search.”
This idea, that requesting parties’ real interest is in the validity of the resulting production rather than the method by which it is achieved, fits hand-in-glove with the idea that producing parties know best, and it too, will come up again in later predictive coding cases.
In Part 3 of this series, we will review the Global Aerospace case.
This is Part 2 of a multi-part blog series reviewing case law discussing predictive coding in eDiscovery.
