In Everlast Roofing, Inc. v. Wilson, No. 1:23-CV-828 (M.D. Pa. July 16, 2025), Pennsylvania Magistrate Judge Martin C. Carlson calling this litigation “a case which threatens to become an epic of dysfunctional discovery”, recommended that “the parties’ ESI protocol should draw upon a statistically valid random sample and then include a TAR procedure aimed at using this smaller sample to define search parameters which achieve a 95% accuracy rate when reviewing these records.”

Case Discussion and Judge’s Ruling

In this case involving claims of breach of contract, tortious interference with contract, unfair competition, and misappropriation of trade secrets, Judge Carlson began his ruling by stating: “Today we write the next chapter in this litigation, a case which threatens to become an epic of dysfunctional discovery.”

Continuing, he said: “The parties have long been embroiled in contentious discovery disputes… We have repeatedly endeavored to instill in the parties a mutual commitment to cooperatively working together to resolve discovery issues in a collaborative fashion. However, to date, our entreaties seem to have largely fallen on deaf ears. Indeed, it is emblematic of the parties’ inability to cooperate and communicate that their latest submissions concerning the ESI issues in this case contain two utterly irreconcilable competing narratives regarding the course of an in-person meet and confer. It is frankly astonishing that these litigants are unable to come away from an in person meeting with a common understanding of what they have said or agreed to do. Counsel can, should, and must do better. However, in light of their current communication shortcomings, it will fall to us to resolve these discovery issues.”

One of the biggest disputes was regarding ESI search protocols relating to two discovery requests:

• Request 1, which sought emails and other ESI from May 15, 2019 to present relating to Everlast’s sales and profits during the time in which it is alleged that the defendants unlawfully diverted their business. Defendants identified a universe of approximately 94,000 potentially responsive documents, while Plaintiff identified a “mere” 1,800 responsive documents.
• Request 2, which called for a search of ESI from a five-month period relating to allegations that Everlast recorded communications involving defendant Wilson. Defendants claimed that their search terms resulted in some 10,500 hits, while Plaintiff search terms produced only 279 responsive documents.

Judge Carlson, noting the wide discrepancy between the two parties, ordered that “counsel and their ESI vendors shall meet in person to develop and fully implement a collaborative data-driven sample testing strategy to determine which of the remaining approximately 100,000 records identified by the defendants’ search terms may also be relevant and proportionate to the needs of this case.”

Continuing, he said: “The parties’ latest submissions reveal that they have to an astonishing degree failed in this task…Indeed, the extraordinary degree of their mutual dysfunction is exemplified by the fact that in their warring submissions counsel cannot even agree upon what they are alleged to have agreed to in their meet and confer session. Frankly this inability to perform even rudimentary tasks should be a source of chagrin for all involved.”

Addressing ESI sampling procedures, Judge Carlson stated: “As we understand it,…The defendants urge us to simply direct that a random sample of one tenth or one twentieth of the 100,000 records be produced by Everlast for inspection by the defendants. In turn, we believe that Everlast proposes a somewhat more targeted and analytical approach in that it recommends that the parties agree upon the culling of a smaller statistically valid random sample of these records and then use predictive analytics to identify from these documents the records which appear to have the highest degree of relevance to the issues in this case. Based upon this review, the parties could then tailor a more targeted searches aimed at identifying relevant data with a 95% accuracy rate.”

Continuing, he said: “On this score, counsel’s inability to agree upon sampling procedures truly places them ‘where angels fear to tread,’…, since their defaults compel us to decide this aspect of a search protocol. With this responsibility thrust upon us by the litigants’ intransigence, we conclude that a technology-assisted review, or ‘TAR,’ process which uses computer software that learns to distinguish between responsive and non-responsive documents based on coding decisions made by knowledgeable reviewers on a subset of the document collection, to establish search parameters for the entire collection is the most efficient and effective way in which to proceed…Therefore, the parties’ ESI protocol should draw upon a statistically valid random sample and then include a TAR procedure aimed at using this smaller sample to define search parameters which achieve a 95% accuracy rate when reviewing these records.”

So, what do you think? Will the Court’s suggestion of TAR help address the “epic of dysfunctional discovery”? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of Minerva26, an Affinity partner of eDiscovery Today. Hat tip to Michael Berman for the original coverage of this case here!

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