In the case In re Allergan Biocell Textured Breast Implant Prods. Liab. Litig., MDL No. 2921 | Civil Action No. 2:19-md-2921 (BRM)(ESK) (D.N.J. Oct. 25, 2022), Special Masters Joseph A. Dickson, U.S.M.J. (Ret.) and Brittany Manna denied the defendants’ proposed protocol for the use of technology-assisted review (“TAR”) of applying TAR after search terms and instead ordered the defendants to “continue with their originally chosen review method: linear, search term review.”

Case Discussion

In this multidistrict litigation involving textured breast implants and tissue expanders and claims of increased risk of lymphoma, the defendants applied in August 2022 to implement their proposed protocol for the use of TAR after the application of search terms for its document production going forward. The plaintiffs opposed the use of TAR by defendants and instead requested that defendants be ordered to proceed with its search term and linear review or be ordered to implement the TAR protocol to the full custodial set of documents.

The defendants argued that applying TAR after the application of search terms is standard practice and commonly used to promote efficiency and reduce costs, that (as the party responding to discovery) they were in the best position to determine the best review methodology, which they contended was to train the TAR model and implement the TAR protocols to the remaining un-reviewed custodial documents after the application of search terms. They indicated there remained approximately 560,000 custodial documents totaling more than 3.5 million pages still to be reviewed by its eDiscovery vendor and that it would take twenty weeks to complete manual review on those documents.

The defendants also submitted several cases – In re Biomet M2a Magnum Hip Implant Prods. Liab. Litig., Livingston v. City of Chi., Huntsman v. Sw. Airlines Co., and Bridgestone Ams., Inc. – as cases where the courts permitted their proposed approach.

The plaintiffs argued that the application of TAR to the full corpus of documents, prior to the application of search terms, would create no additional burden on the defendants and would increase the accuracy of the review. The plaintiffs argued that applying TAR to the un-reviewed documents after search terms would be prejudicial and unreasonable because it would exclude documents from review and reduce the “efficacy and accuracy” of the review process. They also argued that defendants did not provide any data to support an estimate of how much time or money would be saved by implementing TAR in their suggested manner and offered up the case In re Valsartan, Losartan, & Irbesartan Prods. Liab. Litig. to support their position.

Special Master’s Ruling

In analyzing the Biomet and Bridgestone cases, the Special Masters stated in citing the defendants’ lack of cost data to support their position and the age of the cases: “We do not agree with Defendants’ characterization of the case law. There is no such general principle espoused by the courts or the commentators. That is not to say that cases do not exist where parties are permitted to apply TAR after culling by the application of search terms. The courts find solutions to the problems confronting them, but do not settle the question of which method is better.”

The Special Masters also cited a Declaration from the defendants’ eDiscovery vendor, stating: “The Declaration set forth the costs Defendants have incurred to-date for their review. The Declaration does not detail how those costs will be increased or decreased based upon the implementation of TAR either before search terms are applied or after search terms are applied. The Defendants, despite being afforded multiple opportunities (in their opening brief, in their reply, and during oral argument on September 30, 2022) to provide a cost-benefit analysis or statistical sampling, have not done so. Defendants fail to explain why they should be permitted to continue using search terms when TAR is generally recognized as more efficient. What is the advantage of using both search terms and TAR? No explanation has been satisfactorily provided.”

They added: “The use of both opens the door for additional discovery disputes related to the accuracy of Defendants’ review. We do know that applying TAR to an already reduced (via search terms) set of documents will only reduce the document pool further and will certainly not reveal documents that the application of search terms has precluded.”

Adding: “Also driving our decision is the fact that the parties have not agreed to the application of TAR”, the Special Masters cited the ESI Protocols in stating: “The Parties are expected to work in a cooperative and collaborative manner to maximize the efficiency and success of the application of the methodologies proposed at identifying potentially relevant ESI. To the extent the Parties are unable to reach agreement on the application of, or procedures for, any search or filtering processes, the Parties shall raise such issues for resolution by the Court. Following such agreement and/or order of the Court, if either Party believes that revisions to agreed-upon search-term or advanced-technology procedures are necessary to enhance or improve the identification of potentially responsive ESI, the Parties shall promptly meet and confer regarding the proposed revisions prior to implementation. No such revisions shall be permitted absent agreement of the Parties, or order of the Court.”

In ordering the defendants to “continue with their originally chosen review method: linear, search term review”, the Special Masters stated: “We have little doubt that the parties knew at the outset the costs of ESI discovery would be high, and the review process would be extensive. The fact is, without testing on an agreed set of documents, no one can predict whether the application of TAR with or without search terms is the more economic and feasible way to proceed. Implementing TAR, at this stage, after the application of search terms, opens the door for potential disputes that may arise related to the accuracy of the review process and will further delay the completion of discovery and drive costs upward. Finally, applying TAR to an already reduced (via search terms) set of documents will reduce further the identified responsive documents and will certainly not reveal documents that the application of search terms has precluded. Because Plaintiffs did not bargain for this at the outset, over a year ago, it is inappropriate to force them to accept it now.”

So, what do you think? Are you surprised that the Special Masters rejected defendants’ request to apply TAR after keyword search? Please share any comments you might have or if you’d like to know more about a particular topic.

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