My February 17th blog, “Judges Make the Case for TAR” discussed the widespread acceptance by federal courts of technology assisted review (“TAR”), which is acknowledged as cost effective, efficient, and likely superior to the tried and true keyword searching methodology.  Continuing with the theme of TAR, the District Court of New Jersey recently addressed the critical importance of the meet and confer process (ideally steeped in cooperation and collaboration) when parties decide to implement TAR.

In the In Re: Valsartan, Losartan, and Irbesartan Products Liability Litigation, Judge Schneider of the District of New Jersey addressed several issues unique to the discovery of Electronically Stored Information (“ESI”) (2020 WL 7054283 [D.N.J. Dec. 2, 2020]).  Valsartan is a complex litigation involving allegations that the prescription medication, Valsartan, contained cancer causing chemicals.  Given the complexity and scope of the litigation, the Court and parties were well aware that the costs of ESI discovery would be significant and, as such, TAR should have been contemplated at the outset of the litigation.

And so, on June 18, 2019, the Court ordered the parties’ stipulated ESI protocol which required that the parties “cooperate in good faith regarding the disclosure and formulation of appropriate search methodology, search terms and protocols, and any TAR/predictive coding prior to using any such technology to narrow the pool of collected documents to a set to undergo review for possible production” (Id. at 2).  Subsequently, the parties negotiated custodians and search terms, which the Court ordered on December 23, 2019 (the “ESI Protocol Order”).  Prior to the ESI Protocol Order,  defendant Teva refused to sample the hits generated by the agreed upon search terms.  Despite their refusal, Teva later complained the search terms were unduly burdensome.  Over the objection of Plaintiffs, on June 24, 2020, the Court ordered the use of narrower search terms, with the first production to be made on July 15, 2020 and all productions to be complete by November of 2020.

One year after negotiating custodians and search terms, six months after those terms were originally So Ordered by the Court, and two weeks after the Court narrowed the search terms, Teva declared, for the first time, that it planned to incorporate Continuous Multi-Modal Learning (“CMML”), a form of TAR using little human input, for its review.

As Teva’s declaration was contrary to the ESI Protocol Order, it did not sit well with either Plaintiffs or the Court.

Upon Teva’s unilateral declaration, Plaintiffs objected on the grounds that had they known Teva intended to use TAR all along, the past year of negotiations and concessions on their part would have been handled much differently.   Additionally, Plaintiffs requested that they be allowed to review 5,000 of Teva’s potentially non-responsive documents manually to validate Teva’s CMML review results.  Teva refused to cooperate.

In his decision, Judge Schneider, relying on Hyles v New York City, agreed that the use of TAR is acceptable so long as a party is transparent and timely in disclosing its use.  The Judge further observed these technologies work and layering them onto search terms is acceptable (10 CIV 3119ATAJP, 2016 WL 4077114 [SDNY Aug. 1, 2016]).  The Court disagreed, however, with Teva’s contentions that it had complied with meet and confer obligations identified in the ESI Protocol and had disclosed timely and cooperatively its intention to use TAR.  Importantly, the Court noted that given the volume of ESI at issue, Teva, who was already consulting with its ESI vendor regarding the use of TAR prior to the ESI Protocol Order, should have disclosed its intended use of TAR during the meet and confer process.  Ultimately, while Judge Schneider allowed Teva’s use of TAR, he granted Plaintiffs’ request to validate a set of 5,000 purportedly non-responsive documents.

In re Valsartan offers us two important reminders.  First, litigants are free to choose their ESI production methodologies. Relatedly, a party has an obligation to participate in the meet and confer process and to be cooperative and collaborative during the process.  Adversaries – and courts alike – have little patience for delay tactics and failures to disclose timely information relevant to discovery.