In the case In re Diisocyanates Antitrust Litig., No. 18-1001 | MDL No. 2862 (W.D. Pa. Oct. 19, 2022), Special Master James C. Francis IV (Ret.) issued a Report and Recommendation where he recommended that the plaintiffs’ motion to compel be granted to the extent that three defendants be required to resume their TAR review, presumptively continuing until the last two batches reviewed contain no more than 10% responsive documents (with provisions on the basis of the significance of the documents). He also recommended that the plaintiffs’ motion be denied in all other respects.

Case Discussion

In this multidistrict litigation which involves allegations that the defendants conspired to reduce supply and increase prices for methylene diphenyl diisocyanate (“MDI”) and toluene diisocyanate (“TDI”), the plaintiffs moved in March 2021 for an order compelling the defendants to use certain search terms and TAR methodologies in their productions. The defendants cross-moved for a protective order permitting them to proceed with the search terms and TAR protocols they had selected. Judge Francis was appointed as eDiscovery Special Master with the task of providing a recommended disposition of the motions.

After attempts to resolve the disputes were unsuccessful, Judge Francis issued a Report and Recommendation (R&R) in August 2021 recommending both motions be denied. The defendants decided to modify their TAR protocols to address the flaws identified in the First R&R, representing that in the event the parties did not agree on search terms, they would apply their chosen terms but would perform a validation analysis that covered the search term phase as well as the TAR phase of the process. They also committed to a process by which they would share with the plaintiffs the number and content of responsive documents identified in the last two batches of documents processed by TAR at the point where the defendants proposed to conclude their search. The plaintiffs would then be able to seek Court review if they disagreed with the defendants’ assessment that the search was reasonably complete.

The plaintiff objected to the R&R, asking the Court to adopt one of three alternative solutions: (1) grant the plaintiffs’ motion, requiring the defendants to implement the plaintiffs’ TAR procedures and run the plaintiffs’ proposed search terms (or forgo search terms altogether and utilize TAR exclusively); (2) adjudicate the search terms then in dispute and remand the parties back to me to fashion a TAR methodology; or (3) simply order the defendants to produce all non-privileged documents in their collections that hit on the plaintiffs’ search terms. The Court overruled the plaintiffs’ objections and ordered the defendants to “proceed, forthwith, as they have outlined in their submissions”. Additional disputes over search terms followed, which led to a second R&R from Judge Francis recommending the defendants be allowed to proceed with their search terms (while preserving plaintiffs’ ability to challenge the results), which was adopted by the Court in full.

The defendants proceeded with their search terms and TAR approach. All of the defendants stated a recall estimate of between 74% and 89%. Three of the defendants stopped their TAR review when the percentage of documents that were responsive were all above 10% (19%, 18% and 15%).

The plaintiffs issued several challenges of the results, including the TAR results, and presented a declaration from their expert, Dr. Maura R. Grossman, who opines that the defendants’ recall estimates are “overly rosy” because they were not calculated using blind, stratified samples and that the problem arises because qualified independent reviewers disagree about the proper coding of a document about 30% of the time. The plaintiffs also challenged the decision of three of the defendants to cease their TAR review procedures when they did, having advocated that review continue until “the Iast two batches of documents identified by TAR and reviewed by humans contains no more than five to ten percent (5%-10%) responsive documents, and none of the responsive documents is novel and/or more than marginally relevant.”

Special Master’s Ruling

After a lengthy analysis of the search terms (including highlighting of several documents), Special Master Francis disagreed with the plaintiffs’ analysis that responsive documents were proven to have been missed, stating: “The better conclusion is that the defendants’ search terms were robust enough to capture many of the same documents that the disputed terms would have, without bringing in volumes of additional non-responsive documents… This does not mean that the disputed search terms would not yield many additional responsive documents; they would. It does not mean that the defendants’ search terms are perfect; they are not. But the parties agreed that the defendants could use search terms to narrow the population of documents to be presented to the TAR tools…, and the search terms utilized by the defendants have not been demonstrated to be unreasonable. The evidence shows that the documents that they missed were probably not of high value, and the search terms adequately captured the critical issues that the plaintiffs have identified. I therefore recommend that the plaintiffs’ motion be denied insofar as it seeks to require the defendants to adopt the disputed search terms.”

Regarding the decision for three of the defendants to stop their TAR review when they did, Special Master Francis stated: “While the documents retrieved from the last two TAR batches are not entirely novel and would not justify implementing a new set of search terms, they are sufficiently important to require WCA, Huntsman and Covestro to continue their review of documents already identified as potentially responsive based on their own search terms. The volume of communications reflecting certain subjects – customer complaints about price and supply, communications between competitors, supply disruptions – provides circumstantial evidence that permits the plaintiffs to fill in their mosaic and are significant even if individual examples of such documents appear trivial.”

After conducting a proportionality analysis on whether to continue the TAR review process, Special Master Francis stated: “On balance, then, the proportionality factors favor requiring WCA, Huntsman, and Covestro to continue their TAR review. To reduce the probability of further dispute and to provide the parties with a benchmark, I recommend that each review may presumptively be terminated when the last two batches reviewed contain no more than 10% responsive documents. Since the quality as well as the quantity of the documents retrieved remains important, this does not preclude either party from arguing that the process should halt earlier or continue longer based on the nature of the documents in those batches. It does, however, establish a hurdle that the party seeking to require a different stopping point must overcome.”

So, what do you think? At what point should a party be allowed to suspend its TAR review? 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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