In “Regrettable” Discovery Dispute, Court Orders Defendant to Use Originally Negotiated TAR Protocol: eDiscovery Case Law

We still have room for one more Technology Assisted Review (TAR) dispute before 2020 ends… 🙂

In the case In re Valsartan, Losartan, and Irbesartan Prod. Liab. Litig., No. 19-2875 (RBK/JS) (D.N.J. Dec. 2, 2020), New Jersey Magistrate Judge Joel Schneider rejecting the defendant’s “unilaterally developed and administered TAR” approach because it violated the Court Ordered Protocol, denied the defendant’s request for an Order foreclosing additional review of documents that were predicted to be non-responsive or to shift to the plaintiffs the cost of its further manual review of alleged non-responsive documents that its platform predicted to be non-responsive.  Judge Schneider instead ordered the defendant “to conduct its review of non-responsive documents using the TAR protocol the parties almost finalized but for two provisions” and permitted the plaintiffs “to review 5000 alleged non-responsive documents of their choosing”.

Case Background

In this multidistrict litigation (“MDL”) involving the defendants’ blood pressure medication and claims of contamination with cancer causing chemicals, the potential exposure was “into the hundreds of millions and perhaps a billion dollars.”  The parties agreed that they would cooperate in good faith regarding the disclosure and formulation of appropriate search methodology, search terms and protocols, and any TAR/predictive coding prior to using any such technology to narrow the pool of collected documents to a set to undergo review for possible production.  But there were several disputes regarding discovery and the production completion date was extended at the defendants’ request, but with rolling productions implemented leading up to that date.

On July 1, 2020, a year after the Protocol was entered, and only two weeks before Teva’s first rolling production was due, the defendant s informed the plaintiffs for the first time “that the Teva defendants will be utilizing a continuous multi-modal learning (“CMML”) platform to assist defendants with review and production of the Teva defendants’ electronically stored information (‘ESI’).”  The plaintiffs objected, stating that if they had known the defendants contemplated the use of TAR they would not have agreed to limit the review of the custodians’ documents to only those that contained the designated search terms, nor would they have “wasted countless hours” negotiating over search terms or agree to the defendants’ plan to layer TAR review with search terms.

After extensive discussions, all substantive TAR related disputes were resolved except for two issues about which the defendants wouldn’t relent: 1) they wouldn’t agree to the entry of a Court Order to memorialize the parties’ agreement, and 2) they wouldn’t agree to permit the plaintiffs to review 5000 alleged non-responsive documents to evaluate and validate the defendant’s CMML platform.

After subsequent analysis conducted by the defendants without input from the plaintiffs, they requested an Order foreclosing additional review of documents that are were deemed non-responsive by the model or shift any further review costs of non-responsive documents to the plaintiffs.

Judge’s Ruling

Observing that the parties “knew or should have known early on that ESI discovery was going to be costly and extensive” and “the use of TAR was or should have been reasonably contemplated at the outset of the litigation”, Judge Schneider noted that “[t]he Court does not have to decide if TAR is an appropriate discovery tool” and that “[t]he Court also does not have to decide if Teva’s CMML application works or if Teva’s consultant is qualified to attest to its general effectiveness”.  But Judge Schneider stated that “Teva did not comply with the requirements in the Protocol since it is seeking the Court’s blessing to use a CMML platform it unilaterally adopted…the Protocol requires the parties to meet and confer in good faith to attempt to reach agreement. This does not occur if one side or the other unilaterally adopts a TAR protocol ‘late in the game’ and argues it should be approved by the Court. This also does not occur when a party’s TAR protocol is presented to its adversary as a fait accompli. The time to meet and confer in good faith is before a TAR protocol or CMML platform is adopted and used, not after.”

Judge Schneider also disagreed with the defendants contention that they “made an appropriate TAR disclosure within the meaning of the Protocol”, stating that “prior to July 1, 2020 Teva can point to only one fleeting reference to a’ TAR disclosure at a November 15, 2019 meeting with plaintiffs”.  And, Judge Schneider disagreed with the defendants’ argument that the plaintiff did not negotiate in good faith, noting that “the parties were able to reach agreement on a protocol but for Teva’s objection to two provisions.”

Conversely, Judge Schneider also stated “the thought that Teva or plaintiffs might have to spend millions of dollars to manually review irrelevant or marginally relevant documents is more than mildly disturbing.”  As a result, Judge Schneider ruled: “The Court will direct that the TAR protocol to be implemented include the two provisions originally objected to by Teva, neither of which the Court finds controversial or bothersome. The final TAR protocol shall be memorialized in a Court Order. This will hopefully reduce or eliminate disputes down the road. In addition, amongst the validation protocols that must be included in the protocol, plaintiffs shall have the right to review at the end of Teva’s production 5000 alleged non-responsive documents plaintiffs designate for review.”

So, what do you think?  Was this a reasonable compromise or should the Court have given the defendants more leeway regarding their own production?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

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