To Share Or Not To Share: The Debate Over ediscovery Protocols. Please Read The Scenario Hand-Outs

Transcription

1 To Share Or Not To Share: The Debate Over ediscovery Protocols Please Read The Scenario Hand-Outs

2 Participants Honorable Terence P Kemp US Magistrate Judge, US District Court Southern District of OH Honorable Andrew J. Peck US Magistrate Judge, US District Court Southern District of NY Doug Matthews Partner Vorys, Sater, Seymour and Pease LLP Pete PepitoneDiscovery Director at Dinsmore & Shohl LLP Ben Hubble Manager - Records Management at Wendy's

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4 WONDERWORLD Wonderworld (WW) owns theme parks throughout the nation and designs and constructs its own rides and facilities. After the launch of its much anticipated thrill coaster - The JJ Supersonic a power outage at the park caused the ride to hang passengers upside-down for almost half a day. Unfortunately, some passenger experienced permanent brain injuries as a result of the suspension triggering a lawsuit. Diligent Dolly is an attorney for WW. After issuing a litigation hold to custodians, she interviews employees asking them where they retain relevant materials. For , the custodians point Dolly to Sent Items and JJ Supersonic folders in the mailbox. WW provides employees with an unlimited Office365 Exchange storage account, has no autodelete and doesn t allow PSTs. Dolly limits her search to the identified folders. After several productions, Plaintiffs Counsel Griswald LLP, filed a motion to compel asking the court to order Dolly to search all the folders for a provided list of keyword search terms. Dolly s vendors informed her that the request would yield 40 terabytes of data and will cost WW about 2.2 million even after using advanced predictive coding tools and $50/hour reviewers. Does Dolly need to search more, even though her interviews suggest that no relevant data would exist in the other folders?

5 COYOTE VS ACME Coyote was injured due to an explosion caused by an ACME product and sued ACME. At the Rule 26(f) conference, the parties discussed production format but did not discuss any other details of how the parties would identify relevant ESI, in part because no document requests had been served at that time. Shortly after the Rule 26(f) conference, Coyote served ACME with extensive document requests. ACME, identified the custodians most likely to have responsive documents and worked with those custodians to derive a series of search terms it would apply to the mailboxes of those custodians to try and identify potentially responsive documents. ACME applied those search terms, reviewed the hits, and produced the documents it deemed to be responsive. After receiving the production, Coyote asked ACME to state whether it had used any electronic search terms to narrow what it had reviewed for production and, if so, to identify the search terms used. Coyote also asked that ACME validate those search terms by reviewing a sample of the non-search term hits on the custodians to see whether responsive documents were missed by using those search terms. Scenario One: ACME refused the request. Coyote is now asking the Court to compel ACME to disclose the search terms it used and perform the requested validation. Scenario Two: ACME disclosed the search terms, performed the validation sample, and agreed to slightly modify the search terms so that the few responsive documents it found would be picked up. Coyote is now seeking the Court to require that ACME use additional search terms and to produce the sample documents it reviewed and determined were not responsive.

6 COYOTE VS ACME Scenario Three: During the discussion over the search terms, ACME disclosed that 91,000 documents hit upon the search terms. However, after review, ACME produced only 1,700 documents. Coyote believed there should be more responsive documents based on the 91,000 documents that had hit on the search terms. Coyote filed a Rule 37 motion to compel to get ACME to provide all non-privileged documents that hit on the search terms not just those tagged as responsive.

7 PREDICTIVE PREDICAMENT In an asymmetrical dispute the defendant, Tyrell, seeks to use predictive coding to assist with its production of documents. In responding to the document requests served by plaintiffs counsel, Blade & Runner LLP, Tyrell develops an ediscovery workflow that employs predictive coding to identify documents for review. Scenario One: Tyrell does not disclose prior to production that that it is using predictive coding. When learning that predictive coding was used, Blade & Runner argues that the production must be re-done since the undisclosed use of predictive coding has impugned the integrity of the production process, resulting in an incomplete production of responsive information. Scenario Two: Tyrell discloses in advance that it is using predictive coding. Blade & Runner demands to see the training set used by Tyrell. Blade & Runner also demands that Tyrell disclose how it used predictive coding to cutoff what documents were being used and to identify the specific Recall and Precision statistics relied upon by Tyrell in that decision.

8 PREDICTIVE PREDICAMENT Scenario Three: Tyrell used predictive coding to determine the potential production set out of the universe of collected documents. However, Tyrell decided that it was still unreasonably expensive to perform a linear review of the potential production set. Instead, Tyrell performed a series of electronic searches designed to identify potentially privileged documents in the potential production set. It used a managed review vendor to conduct a privilege review of the documents that were identified in these potentially privileged documents and produced the responsive, non-privileged documents identified during the review.. For the documents not identified as potentially privileged, Tyrell recognized that the Precision of the predictive coding was not ideal and that the non-privileged production set contained a substantial number of non-responsive documents. Tyrell used additional searches to remove some non-responsive documents from the production. Tyrell then produced the remainder of the potential production set without document-by-document review. Blade & Runner discovered a large number of clearly non-responsive documents in Tyrell s production and has asked the Court to require Tyrell to perform a document-by-document review to remove all non-responsive documents.

9 To Share Or Not To Share Questions? Diyconfessions.com