In Edgar v. Teva A Pharm. Indus., Ltd., No. 22-cv-2501-DDC-TJJ (D. Kan. Aug. 5, 2024), Kansas Magistrate Judge Teresa J. James entered the parties’ proposed ESI Protocol with Plaintiffs’ proposed Technology Assisted Review (“TAR”) provision that first required a “good faith attempt to produce from the search term protocol” before a producing party could disclose the need for the implementation of TAR. She also entered the parties’ proposed Protective Order with Defendants’ proposed clawback provision that didn’t require disclosures of privileged information to be inadvertent.

Case Discussion and Judge’s Ruling

In this case over Sherman Act and other claims related to a reverse payment settlement between two drug manufacturers that enabled both of them to maintain their respective monopolies with respect to a drug each of them sold, the Court addressed disputes regarding issues related to two protocols: 1) the clawback provision of the Protective Order, and 2) the TAR provision of the ESI Protocol.

Regarding the clawback provision of the Protective Order, the parties disagreed whether the clawback procedure for the disclosure of privileged information should be limited to “inadvertent or mistaken production” (proposed by Plaintiffs as Option 1), or whether a party may invoke the clawback procedure for all materials produced “whether inadvertent or otherwise” (proposed by Defendants as Option 2).

The plaintiffs argued Fed. R. Evid. 502(b) is expressly titled “Inadvertent Disclosure,” and provides a safe harbor for inadvertent production if reasonable steps were taken to prevent the error and then rectify it. They also expressed concerns that Defendants’ proposal would eradicate the waiver consequences of an intentional disclosure and indicated that they expected Defendant Teva might attempt to use the “inadvertence-less” clawback provision to allow re-assertion of privilege over emails Teva intentionally produced in the EpiPen MDL to keep them out of this case.

Defendants argued their proposed clawback provision for all materials “whether inadvertent or otherwise” was consistent with Fed. R. Evid. 502(d), and was a common and common-sense approach that avoids fights over whether the production or disclosure of privileged information was in fact “inadvertent”, contending ample protections remain under both the Protective Order and the Federal Rules to allow the parties to challenge an assertion of privilege if they believed it was warranted.

Judge James ruled: “The Court finds Defendants’ proposed provision permitting the clawback of privileged materials on any basis, ‘whether inadvertent or otherwise,’ will avoid disputes over whether the parties’ disclosure was inadvertent. Plaintiffs’ concern regarding the potential for clawback of privileged documents that were intentionally disclosed in other cases, if it becomes an issue, can be addressed through motion practice challenging the assertion of privilege for the specific documents at issue.”

As for the TAR dispute, Plaintiffs proposed the following TAR provision for inclusion in the ESI Protocol:

“If a producing Party intends to use TAR to cull documents for review and production after a good faith attempt to produce from the search term protocol, the producing party shall disclose the need for implementation of TAR. The parties shall then meet and confer to enter into a cooperative and transparent TAR protocol.”

Defendants objected and proposed this: “The parties shall meet and confer to enter into a mutually agreeable TAR protocol.”

Defendants argued Plaintiffs’ provision eliminated the TAR cost and time saving features by specifying that TAR can be used to cull documents only “after a good faith attempt to produce from the search term protocol”, which would significantly increase the cost and time of document review, without a corresponding increase in accuracy. Defendants also opposed use of the word “transparent” for a TAR protocol because they contended it is ambiguous and objected to disclosing their need for implementation of TAR on the basis that it might waive attorney-client privilege or work product.

Judge James ruled on this issue, stating: “Both sides make valid arguments, but the Court finds Plaintiffs’ proposed TAR provision to be the better choice. The Court finds persuasive the cases cited by Plaintiffs noting the importance of transparency and cooperation among counsel when a party intends to use TAR…According to those cases, TAR requires ‘an unprecedented degree of transparency and cooperation among counsel in the review and production of ESI responsive to discovery requests.’ Those case also note that courts approving the use of TAR typically ‘required the producing party to provide the requesting party with full disclosure about the [TAR] technology used, the process, and the methodology, including the documents used to ‘train’ the computer.’…Plaintiffs’ TAR provision better aligns with these principles of transparency and cooperation as it requires the party intending to use TAR to disclose the need for implementation of TAR, as well as requiring a meet and confer to enter into a ‘cooperative and transparent TAR protocol.’ The Court does not find the word ‘transparent’ ambiguous in this context.”

Continuing, she added: “However, the Court recognizes the cost-saving benefits of TAR may be significantly reduced if a party intending to use TAR is required to first conduct an extensive manual review and production of responsive ESI. Plaintiffs’ proposed provision—requiring a party intending to use TAR to make a ‘good faith attempt to produce from the search term protocol’ before implementing TAR—is unclear as to what that would entail. Prior to entry of this Order, the Court informally requested the parties further confer and attempt to draft additional language setting parameters on what would constitute a ‘good faith attempt to produce from the search term protocol’ before using TAR. The parties advised they were unable to reach agreement. The Court will not craft language for the parties regarding this technical issue. Instead, the Court reminds the parties that a ‘reasonableness’ standard shall apply to the TAR provision requiring a ‘good faith attempt to produce from the search term protocol.’”

So, what do you think? Should parties have to make a good faith attempt to use search terms before using TAR? 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.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.