Shark week, er, eDiscovery Case Week, continues today!  In the case In re Class Action Settlement Administration Litigation, MDL No. 3162 (D.D.C. July 10, 2026), District of Columbia District Judge John D. Bates stated “The Court agrees with plaintiffs” on several disputes between the parties, including whether Rule 502(b) ought to apply to waiver of privilege, the handling of short message communications and hyperlinked documents, and search methodology, TAR transparency and validation methodology.

Case Background and Judge’s Ruling

In this case where plaintiffs alleged that class action settlement administrators conspired with banks or fintech companies in kickback schemes that artificially depressed the payouts received by class members, Judge Bates ruled on several items.

Rule 502 Waiver of Privilege

The parties disagreed whether the protective order should eliminate the requirements of Federal Rule of Evidence 502(b) through a broad Rule 502(d) order. Defendants sought a “no waiver” Rule 502(d) order that would permit privileged documents to be clawed back regardless of how careless the disclosure may have been, while plaintiffs argued that the traditional Rule 502(b) standards should remain in place.

Judge Bates stated: “The Court agrees with plaintiffs.”

While acknowledging that many model protective orders and The Sedona Conference recommend broader Rule 502(d) protection, Judge Bates found that such protection is appropriate only when both parties agree. Here, plaintiffs objected, and Judge Bates stated: “the Court is concerned about the possibility of belated clawbacks once a party has relied on information—for example, to support a motion or as a deposition exhibit—that has long been disclosed.”

He also emphasized that Rule 502(b)’s reasonableness standard is flexible and considers the realities of modern discovery, noting:

“’[C]onsiderations bearing on the reasonableness of a producing party’s efforts include the number of documents to be reviewed and the time constraints for production,’ as well as the use of tools and applications for screening and the implementation of an efficient records management system.”

Short Message Communications

Judge Bates next considered production protocols for text messages and instant messaging platforms.

Defendants wanted to postpone discussions until such communications became relevant, arguing that plaintiffs were attempting to impose an unnecessarily rigid process. Plaintiffs instead sought to establish production requirements at the outset.

Again, Judge Bates stated: “The Court agrees with plaintiffs.”

He concluded that establishing production protocols early would impose little burden while creating meaningful efficiencies later in the litigation, observing: “There appear to be limited burdens and some efficiencies from establishing at this early stage the process for production of any short message communications that may later become discoverable.”

Hyperlinked Documents

Plaintiffs proposed a three-tier approach that distinguished between hyperlinks pointing to only a few documents and hyperlinks leading to large repositories or locations where automatic collection is infeasible. Defendants argued that linked documents should not automatically be treated like traditional email attachments.

Judge Bates recognized merit in both positions but ultimately concluded that plaintiffs’ proposal struck the proper balance. He stated: “The Court agrees overall with plaintiffs that a procedure for producing hyperlinked documents should be put in place through the ESI protocol rather than left to subsequent meet-and-confer processes.”

While noting that “as defendants highlight, hyperlinked documents are not necessarily akin to traditional attachments”, Judge Bates said: “the Court is aware that the increasingly widespread use of document sharing platforms such as Microsoft 365 or Google Workspace means that many relevant documents are shared via hyperlink rather than attachment.”

Noting that “Plaintiffs’ proposal gets closer to balancing the unique considerations associated with hyperlinks by tailoring the burden to the characteristics of the hyperlink”, Judge Bates concluded: “The Court generally agrees with plaintiffs that the ESI protocol should address hyperlinks at this stage and that a tiered system accounting for burden…is an appropriate manner of doing so.”

Custodian Identification, Search Methodology, TAR, and Validation

Judge Bates also adopted plaintiffs’ proposals regarding several foundational aspects of document discovery.

First, he required producing parties to identify custodians and data sources within fourteen days of the Rule 26(f) conference. Judge Bates rejected defendants’ proportionality objections, finding insufficient evidence that the disclosures would create undue burden.

Second, he endorsed an iterative search-term development process that includes disclosure of hit reports and ongoing collaboration between the parties. Judge Bates rejected defendants’ reliance on prior cases limiting court involvement in search-term disputes because those cases involved very different factual circumstances.

Judge Bates also required transparency regarding the use of Technology-Assisted Review (TAR), holding: “the parties shall employ an iterative process of search term development and the producing party shall provide hit reports and establish a validation process to assess responsiveness. TAR shall be permitted only if a TAR protocol is agreed in advance.”

Finally, as to validation methodologies, Judge Bates again stated: “The Court agrees with plaintiffs.” Rejecting defendants’ argument that Rule 26(g) imposes no specific validation requirements, Judge Bates emphasized the importance of transparency, stating: “Courts routinely require some form of validation so that the receiving party can be confident that production is substantially complete. Otherwise, discovery would be a black box, and our adversarial system does not contemplate such one-sided litigation.”

Judge Bates did side with defendants on one issue: whether the producing party or challenging parties should bear the burden of filing motions to defend confidentiality markings, siding with defendants that the challenging parties should bear the burden.

So, what do you think? Are you surprised the Court found for plaintiffs in almost every dispute? 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. Hat tip to Judge Andrew Peck (ret.) for the heads up on this case.

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