Preliminary Diagnostic Protocol

Preliminary Diagnostic Protocol Devised by Special Master to Assess Plaintiff Productions: eDiscovery Case Law

In BCBSM, Inc. v. Walgreen Co., No. 1:20-cv-01853* (N.D. Ill. July 21, 2023), Special Master Maura R. Grossman, appointed to address discovery issues raised by the defendants regarding the adequacy of productions from the 28 initial plaintiffs, worked with the parties to create a Preliminary Diagnostic Protocol to “be completed in full by the Initial Plaintiffs” upon which Special Master Grossman would will perform calculations set forth in the Appendix to the Order and provide the results to the parties for review and comment.

Case Discussion

In this case involving the pricing of prescription drugs and reimbursement to health insurance providers, the Court appointed Special Master Grossman on May 2, 2023 to address and resolve all issues raised by Defendants regarding the Initial Plaintiffs’ use of technology assisted review (TAR) and the Initial Plaintiffs’ collection and production of documents from additional custodians.”


After an initial meeting with the parties and reviewing the briefs and related materials, Special Master Grossman proposed that the Parties consider beginning with “a fresh validation protocol that [she] would develop (in consultation with the Parties) which would be designed to identify a problem [with the Initial Plaintiffs’ production(s)], if there is one, and to show where it is if it exists.” Special Master Grossman attached to her email two sample validation protocols that she had developed and used in prior cases, one from Rio Tinto plc v. Vale S.A. et al. and the other from In re Broiler Chicken Antitrust Litigation (“Broilers”). She requested that the parties review the two protocols and advise her as to (i) whether they agreed that the suggested approach of gathering some empirical data first, would be a better way to proceed for now, and (ii) if so, whether they preferred the Rio Tinto Protocol, the Broilers Protocol, or some combination of both.

Each of the parties agreed that a validation process was appropriate (with Initial Plaintiffs favoring aspects of the Broilers protocol, while Defendants expressed a preference for certain elements of the Rio Tinto Protocol.) but Defendants indicated that there were still certain “gating questions” that the Initial Plaintiffs should be required to answer before proceeding to such a validation protocol.

In a follow-up meeting, Special Master Grossman expressed concern that Defendants’ “gating questions” implicated work product, which the Special Master was loath to pierce based on the present factual record. The Special Master expressed her preference to proceed with certain questions that relate solely to the Initial Plaintiffs’ prevalence estimate(s) and a validation exercise that was similar to the one undertaken in Broilers because it would help to diagnose the presumed problem (assuming there is one) and provide a path forward. In response to this, Defendants requested and were granted the opportunity to present an alternative, slightly modified validation protocol, which would not invade the Initial Plaintiffs’ work product, before the Special Master made her final ruling.

The defendants did so, but the Plaintiffs rejected Defendants’ Draft Protocol in its entirety as “a protracted and unreasonably extensive exercise that would require [the Initial] Plaintiffs to provide unnecessary (and in some cases privileged) information about collection and other aspects of the process not at issue, and then review and catalogue tens of thousands of documents”, also calling it “extraordinarily complicated”, “impos[ing] unnecessary and significant cost and burden on [the initial] Plaintiffs”, and that it would “not generate information relevant to the ultimate issue.


Special Master Grossman agreed with the Plaintiffs that what Defendants sought was “unduly burdensome, overly complex”, noting that the Defendants’ Draft Protocol “would appear to require the review of 86,072 documents, simply for the purpose of confirming that there is a problem with the TAR process and trying to determine where it might be.” She noted: “While it is conceivable that the Special Master may ultimately end up requiring responses to some of Defendants’ “gating questions” (and/or other questions), we are simply not there yet, and Defendants are putting the cart before the horse.”

Instead, Special Master Grossman “developed a more reasonable and proportionate initial diagnostic process that does not invade work product, and that will assist the Parties and the Special Master in moving forward” and ordered the Initial Plaintiffs to undertake the Special Master’s “Preliminary Diagnostic Protocol to Assess the Adequacy of the Initial Plaintiffs’ Original and Supplemental Productions… to gather meaningful, objective information that will allow an overall assessment of the quality of the Initial Plaintiffs’ productions to date, and if there are issues with the Initial Plaintiffs’ productions, should help to determine what and where those issues are, allowing for targeted remediation efforts.”

Summary of the Preliminary Diagnostic Protocol

The details of the Preliminary Diagnostic Protocol are included in the order. The Initial Plaintiffs were ordered to complete:

  • A “Prevalence Exercise”, which required the Plaintiffs to provide metrics and responses to 35 requests for information.
  • A “Stratified Sampling (a.k.a., ‘Broilers’) Exercise”, which required the Plaintiffs to conduct 8 random samples totaling 6,000 documents to be arranged in random order, with no information indicating what subsample or stratum any document belonged to, how it was previously coded, and whether or not it was previously produced or withheld as privileged or non-responsiveand then to be reviewed again by subject matter expert(s) who would not have information of how the documents were treated previously.
  • A “Declaration”, “attesting, under penalty of perjury” that Initial Plaintiff custodians, responses, and/or productions should be the same, the Stratified Sampling Exercise was performed blindly and the information provided in response to the Preliminary Diagnostic Protocol was accurate and complete to the best of the declarant’s knowledge, information, ability, and belief.

Based on the information provided, Special Master Grossman would then perform calculations set forth in the Appendix to the Order (described in detail there) and supply the results of those calculations to the Parties for their review and comment.

So, what do you think? Was this Preliminary Diagnostic Protocol the best approach to help identify potential issues with Plaintiff’s productions? Please share any comments you might have or if you’d like to know more about a particular topic.

*Combined with other cases

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