In BCBSM, Inc. v. Walgreen Co., No. 1:20-cv-01853 (N.D. Ill. Jan. 5, 2024), Special Master Maura R. Grossman, following up on the Preliminary Diagnostic Protocol (PDP) issued in July 2023 to be completed in full by the Initial Plaintiffs, issued an order for a Remediation Protocol for the parties to complete to identify and produce additional documents from previous custodians and thirteen additional custodians.

Case Background and 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.”

To address those issues, 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.”

The Initial Plaintiffs complied with the PDP as ordered, and the Special Master performed the calculations set forth in the Appendix to the PDP based on information supplied by Initial Plaintiffs, as well as the responsiveness coding provided by Initial Plaintiffs with respect to certain samples (collectively, the “PDP Sample”), as provided for in the PDP.

The Validation Worksheets indicated an overall recall of 11.3% for all Initial Plaintiffs combined for the Original Collection as of August 22, 2022; an overall recall of 23.2% for all Initial Plaintiffs combined for the Original Collection after August 22; an overall recall of 21.5% for all Initial Plaintiffs combined for the Supplemental Collection; and an overall recall of 22.8% for all Initial Plaintiffs combined for the Combined Collection. The results of the PDP suggested that a substantial number of additional responsive documents likely remained within the documents collected for the previous (agreed-upon) custodians.

The Parties agreed that the Initial Plaintiffs would voluntarily engage in this Remediation Protocol designed to identify and lead to the production of additional responsive documents remaining within the documents collected for the previous (agreed-upon) custodians. They also agreed that Initial Plaintiffs woukd produce responsive documents from thirteen (13) additional custodians identified in Appendix A to Walgreens’ October 13, 2023 “Proposed Stipulation Regarding Remediation of Deficiencies in Initial Plaintiffs’ Production”.

Highlights of Special Master’s Order

Special Master Grossman outlined steps for the Initial Plaintiffs to take to supplement their Original Production, as of August 22, 2022, their subsequent Supplemental Production, and the new production from the Additional Custodians.

THE STEP-ONE TRAINING SET

Instructions for this training set included:

• An order for Defendants to “review the 6,000 documents in the PDP Sample for responsiveness under the same ‘blind review’ and other parameters set forth in the PDP and this Order (i.e., with no knowledge of how the Initial Plaintiffs coded them).
• Initial Plaintiffs to arrange for their vendor (Consilio) to provide a secure workspace for Defendants to make their coding determinations.
• Defendants to also be provided with and review a random sample of up to 300 documents for each of the Additional Custodians with parameters for selection using the same steps as previously agreed.
• Parameters for the Initial Plaintiffs to withhold documents that hit on their Special Master-approved privilege search-term filter, plus family members, for further privilege review.
• Defendants to complete their assessment of the Step-One Training Set within 5 weeks after receiving access to it.
• Consilio to update the training of the existing TAR model based solely on Defendants’ responsiveness determinations on the Step-One Training Set.
• Initial Plaintiffs to produce to Defendants all documents in the Step-One Training Set that were coded as responsive by Defendants and not previously produced, plus their family members, following reconciliation of all privilege and duplication issues.

THE STEP-TWO TRAINING SET

• The top-ranked 100,000, unproduced documents from the Updated Review Set (with family members), that did not hit the Initial Plaintiffs’ Special Master approved privilege search term filter would promptly be made available to Defendants for responsiveness coding within 9 weeks after receiving access to it.
• Processes for handling that were deemed unsuitable for TAR (if any) (“Non-TARable Documents”) and addressing documents deemed privileged.
• Initial Plaintiffs to produce to Defendants documents in the Step-Two Training Set coded as responsive by Defendants and not previously produced, plus any family members, following reconciliation of all privilege issues.

POTENTIAL STEPS “THREE PLUS” TRAINING SETS

• After completing the Step Two Training Set, the Parties and the Special Master would meet to discuss whether additional training and review is warranted based on the information contained in the report in Appendix A of the order, the marginal precision of the lowest-scoring documents contained in the Step-Two Review Set, and whether a substantial number of non-marginal, non-duplicative responsive documents are estimated to remain in documents not yet produced to Defendants. If so, a Step-Three Training Set would be generated and reviewed in the same manner as set forth above for the Step-Two Training Set.
• Once the Final Validation Protocol has been successfully completed to the satisfaction of the Parties, or if they cannot agree, the Special Master (and if appealed, the Court), the Remediation Protocol would be deemed completed.

Exhibit 1  Exhibit 2  Exhibit 3  Exhibit 4  Exhibit 5  Exhibit 6

So, what do you think? Do you think this Remediation Protocol is appropriate to address production issues associated with the Initial Plaintiff productions? Please share any comments you might have or if you’d like to know more about a particular topic.

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