Often viewed as a necessary evil, the Rule 26(f) conference can serve as an invaluable opportunity to meaningfully discuss discovery such that the process is streamlined and seeks to avoid unnecessary (and often costly) disputes.   Generally speaking, Rule 26(f), among other things, sets the deadline for the conference as soon as practicable and at least 21 days before the scheduling conference, and lists several required topics for the conference, including preserving discoverable information. Although a litigant should use the Rule 26(f) conference to reduce the risk of spoliation claims through agreements on preservation, as well as reduce costs by limiting the scope of e-discovery, achieving results is almost entirely dependent on the attorney’s preparation.  Indeed, being well informed about your client, its documents ‒ including ESI ‒ and its goals will allow for a productive discussion rather than an empty formality.  But, how exactly do you prepare and what should you think about before the conference?

To prepare for the conference, it helps to think about the end game and to formulate the steps necessary to get there.  The below thoughts on preparation/topics are intended merely as a guidepost and are not exhaustive.

  • Understand your client’s ESI:  What kind of ESI is required to prosecute the client’s claims and defend against those of the adversary?  Where does that ESI reside?  To this end, it is important to become familiar with your client’s network architecture, including what hardware exists, and where.   You should strive to understand the client’s knowledge management (when/how is ESI stored), system knowledge (what is stored and where) and who is responsible for maintaining and storing data.  For example, are there physical email servers on site, or are the servers virtual?  What is necessary to access and collect data from each server?  Relatedly, give thought to addressing admissibility and how authenticity may be established over the documents (See The New Rules of Federal Evidence Have Arrived“).
  • Identify Custodians:  Take time to identify employees/custodians likely to have potentially responsive ESI.  Preservation comes at a cost and if you fail to understand your custodians, you may over-preserve.  Consider, for example, if the client is a national organization with offices throughout the U.S.  If all of the relevant custodians work out of the Omaha office, with all of the potentially responsive data located on a particular server, is there need to preserve the content of all other servers?  Consider interviewing those custodians to identify other relevant custodians.
  • Understand the timing and execution of Hold Notices, and Related Thorny Issues: At the conference the parties should determine the scope of the duty to preserve.  For example, be prepared to disclose (and ask adversary about) the status of the litigation hold.  Has one been issued?  If so, when and who received it.  If not, why not?  You may even seek to inquire about what subjects and sources the Hold covers and if there is any procedure in place for auditing compliance.  Are there any time-sensitive data sources involved and if so, have auto-delete and auto-archive functions been turned off for those data sources?  Is data from third-parties potentially responsive?  And, if so, what steps, if any, have been taken to preserve that data?   Have any key custodians left the company or potentially leaving?  If so, what steps are being taken to preserve his/her data?  Because of the large increase in e-data and the various locations where that data may reside, think about ways to narrow defensibly the scope of what you preserve.
  • Understand Collection:   While you may agree to preserve all of Katy Cole’s emails from 2010 to the present, that doesn’t mean you are agreeing to review for production all of that data.  What will be done to identify the materials that will be reviewed?  Can the parties agree upon search terms, date delimiters and other methodologies to limit the universe of material? Consider entering an agreement as to appropriate date ranges, custodians, systems, file types, and search terms.
  • Understand Privilege Obligations:  You should also discuss privilege during the Rule 26 conference.  Consider seeking a stipulation or Rule 502(d) order stating that disclosure of privileged information does not constitute a waiver of the attorney-client privilege in the instant or another proceeding.  Discuss whether a traditional privilege log is practical or burdensome for large volumes of ESI. Would it be preferable to log privileged emails by thread groups (i.e., a message and its attachments; related messages in a string of replies and forwards)?  Or are categorical logs (i.e., those that describe withheld categories instead of listing withheld records) preferable?
  • Understand Production Format:  Don’t leave format to the whim of your adversary.  Discuss expectations.  Indeed, there is little worse than receiving a thumb drive that contains various unsearchable PDFs (well, maybe a paper production is worse).  Discuss your production specifications and be prepared to produce in the same format you demand production.  Relatedly, is there any paper in the production?  If so, be certain to request that Optical Character Recognition (OCR [i.e., the process by which paper documents are converted into editable, searchable computer files]) be applied for ease text-search ability.  And, are you producing in a fell swoop or will the parties engage in phased discovery?

A meaningful and productive Rule 26(f) conference can streamline discovery, avoid unnecessary costs and avoid spoliation concerns.  It should be embraced as an opportunity to reach agreement and engage in a cooperative discovery process that will promote proportionality.

Have questions?  Please contact me at kcole@farrellfritz.com.

On October 1, 2018, a new Rule (specifically, a new subdivision to existing Rule 11-e) of the Commercial Division Rules, will go into effect. 

Rule 11-e governs Responses and Objections to Document Requests.  The new subdivision, promulgated by administrative Order of Chief Administrative Judge Lawrence K. Marks, governs the use of technology-assisted review (“TAR”) in the discovery process. 

The new subdivision (f) states:

The parties are encouraged to use the most efficient means to review documents, including electronically stored information (“ESI”), that is consistent with the parties’ disclosure obligations under Article 31 of the CPLR and proportional to the needs of the case.  Such means may include technology-assisted review, including predictive coding, in appropriate cases…

In addition to implicitly recognizing the cost attendant to e-discovery, the rule promotes cooperation by encouraging parties in commercial cases “to confer, at the outset of discovery and as needed throughout the discovery period, about [TAR] mechanisms they intend to use in document review and production.”  And so, the new Commercial Division Rule appears to bring New York State Commercial Division expectations closer in line with those set forth in the Federal Rules, specifically Rule 26(f), which encourages litigants (with an eye toward proportionality) to discuss preservation and production of ESI.

Questions about technology assisted review?  Please contact kcole@farrellfritz.com.

In 2012, Klipsch Group Inc. (“Klipsch”), a manufacturer of sound equipment, filed a complaint against ePRO E-Commerce Ltd. (“ePRO”), alleging an ePRO subsidiary was selling counterfeit headphones.  Through discovery demands, Klipsch called for the production of information relevant to the sale of the allegedly infringing product, including emails and specific sales data.    Eventually, however, it became clear that ePRO was not engaging in a cooperative discovery process but instead was avoiding its discovery obligations.  For example, ePRO:  failed to implement an appropriate legal hold notice even after having been directed by the Trial Court to do so; limited vendor access to electronic data; failed to produce many responsive documents; and (as demonstrated by a forensic examination authorized by the Court) engaged in routine and systematic deletion of thousands of files and emails using a data wiping software long after the suit had commenced.

Because of the numerous and continuous discovery failures, Klipsch moved for sanctions and ultimately filed an ex parte motion seeking additional relief.  The District Court concluded that ePRO willfully spoliated evidence and it imposed various sanctions on ePRO including:

(1)   a jury instruction requiring the jury find that ePRO destroyed relevant emails and related data;

(2)  a jury instruction permitting the jury to infer that the destroyed evidence would have been favorable to Klipsch; and

(3)  Klipsch’s reasonable costs and fees, which the Court ultimately concluded was $2.7 million necessitated by ePRO’s obstructionist behavior.

ePRO filed an interlocutory appeal, arguing that the District Court’s $2.7 million sanction in the case where damages were, at most, $20,000 was impermissibly punitive and grossly disproportionate.

In January, the Second Circuit upheld the District Court’s sanction.  In doing so, the Circuit held that discovery sanctions should be commensurate with the costs occasioned by the sanctionable behavior, not the value attributable to the alleged (or even proven) compensatory damages.  To allow otherwise would, according to the Circuit, force a litigant to a small value dispute to beat risk to suffer blatant and egregious discovery misconduct.  And so, sanctions must be proportionate to the costs inflicted on a party – irrespective of total case value – by virtue of that party having to remediate discovery misconduct by its adversary.

Consistent with the theme of cooperative discovery, the Second Circuit noted that “the integrity of our civil litigation process requires that the parties….carry out their duties to maintain and disclose the relevant information in their possession in good faith.”    Like the countless other cases I have blogged about since December 2015, this decision serves as another reminder that judges expect cooperation between the parties and their attorneys during the litigation process to achieve orderly and cost-effective discovery; indeed, it is a priority.  Had ePRO and its counsel simply cooperated with their adversary and engaged in good faith discovery, the outcome here would have been entirely different.*

 

 

* Cooperation among counsel is critically important and the means to insure compliance with Rule 1’s mandate that the parties are responsible for securing the “just, speedy and inexpensive determination” of a civil litigation.  Indeed, the revised committee notes state, “[m]ost lawyers and parties to cooperate to achieve these ends” and “[e]ffective advocacy is consistent with – and indeed depends upon – cooperative and proportional use of procedure.”

In Youngevity Intl’s Corp. v. Smith (No: 16-cv-00704 [SD CA December 21, 2017]), defendants sought an Order pursuant to Federal Rules of Civil Procedure 26(g) and 37.  The Order required Plaintiffs to remediate an improper discovery production to pay for Defendants’ costs for bringing the motion to compel and for the cost to review various improper prior productions.  Specifically, in connection with the discovery of electronically stored information (“ESI”), Defendants proposed a three-step process by which: “(i) each side proposes a list of search terms for their own documents; (ii) each side offers any supplemental terms to be added to the other side’s proposed list; and (iii) each side may review the total number of results generated by each term in the supplemented lists (i.e., a ‘hit list’ from our third-party vendors) and request that the other side omit any terms appearing to generate a disproportionate number of results.”

Approximately one week later, Plaintiffs advised in writing that they were “amenable to the three step process described in your May 9 e-mail.”  The parties then exchanged lists of proposed search terms to be run through their own ESI and the ESI of their opponent.

Pursuant to the agreed-to three-step process, Defendants provided to Plaintiffs its “hit list.”  Plaintiffs, however, never produced its “hit list.”  Instead, Plaintiff produced two large caches of documents – the first consisting of approximately 1.9 million pages and the second production consisting of approximately 2.3 million pages.   Upon receipt by Defendants, it became clear that the productions had been bulk coded with a CONFIDENTIAL legend and in some instances also with an ATTORNEYS’ EYES ONLY designation.  The produced materials also contained non-responsive documents.  A few months later, defendants advised they inadvertently failed to produce an additional 700,000 documents due to a vendor error.  Although the parties attempted to resolve amicably their differences, they were unsuccessful.

As a result, Defendants’ filed the instant motion to compel proper production and for costs.

In granting Defendants’ motion, Magistrate Judge Jill L. Burkhardt concluded, “the record indicates that Youngevity did not produce documents following the protocol to which the parties agreed.”  Specifically, “Youngevity failed to produce its hit list … and instead produced every document that hit upon any proposed search term” thus conflating “a hit on the parties’ proposed search terms with responsiveness.”  Moreover, the Court observed “the parties negotiated a stipulated protective order, which provides that only the ‘most sensitive’ information should be designated as AEO.”  As a result, Judge Burkhardt gave the plaintiffs two options for correcting their discovery productions with specific deadlines:

“1) By December 26, 2017, provide its hit list to Defendant; by January 5, 2018, conclude the meet and confer process as to mutually acceptable search terms based upon the hit list results; by January 12, 2018, run the agreed upon search terms across Plaintiff’s data; by February 15, 2018, screen the resulting documents for responsiveness and privilege; and by February 16, 2018, produce responsive, non-privileged documents with only appropriate designations of “confidential” and “AEO” (said production to include that subset of the not-previously-produced 700,000 documents that are responsive and non-privileged); or

2) By December 26, 2017, provide the not-previously-produced 700,000 documents to Defendant without further review; pay the reasonable costs for Defendant to conduct a TAR of the 700,000 documents and the July 21, 2017 and August 22, 2017 productions for responsiveness; by January 24, 2018, designate only those qualifying documents as “confidential” or “AEO”; by that date, any documents not designated in compliance with this Order will be deemed de-designated.”

Judge Burkhardt also ordered Plaintiffs to pay for the reasonable expenses, including attorney’s fees, for bringing the motion and for the expenses incurred by Defendants “as a result of Youngevity’s failure to abide by the Stipulated Protective Order.”

Conclusion

This case is another reminder of what appears to be the well-embraced theme in Federal discovery – cooperation.  The 2015 amendments made plain that cooperation between the parties and their attorneys during the litigation process to achieve orderly and cost-effective discovery is a priority.  Indeed, mutual knowledge of the relevant facts is essential to proper litigation; and therefore the process of obtaining those facts (i.e., discovery) should be a cooperative one.  Had counsel simply abided by the three-step process and stipulated protective Order it willingly entered, there would be no need to defend against (and foot the bill for) the motion to compel.

In IDC Financial Publishing, Inc. v. Bonddesk Group, LLC (15-cv-1085-pp, 2017 WL 4863202 (E.D. Wis. Oct. 26, 2017)), the Eastern District of Wisconsin granted IDC’s motion to compel the production of more than 600 documents that had previously been produced by Bonddesk with extensive non-responsive redactions applied.

Bonddesk argued that the applied redactions were necessary to protect confidential business information that had no relevance to the underlying dispute.  In making this argument, Bonddesk relied on In re Takata Airbag Prods. Liab. Litig., 2016 WL 1460143 (S.D. Fla. Feb. 24, 2016). In the Takata case, the district court in the Southern District of Florida permitted the redactions based upon “non-responsiveness,” because of the “concern that the documents contained competitively sensitive materials that may have been exposed to the public, despite protective orders.”

In the present case, however, the Court looked to the Federal Rules for guidance. Specifically, the Court observed that redactions based upon relevance are not explicitly supported by the Federal Rules, and seemingly contrary to the Rules’ allowance for broad discovery. The Court also reasoned redactions based upon relevance (or a lack thereof), have the potential for abuse. For example, should non-responsive redactions be deemed per se proper, parties may be incentivized to “hide as much as they dare” (internal citations omitted).   Moreover, the Court reasoned that Bonddesk failed to provide an otherwise “compelling reason” for its “extensive” redactions and failed to explain why the protective order in place did not provide adequate protection.

Therefore, based upon the Court’s fear of party abuse, Bonddesk’s failure to articulate a compelling reason for the redactions, and Bonddesk’s failure to articulate why the protective order was insufficient, the Court granted IDC’s motion to compel. The Court concluded it “[did] not see a compelling reason to alter the traditionally broad discovery allowed by the rules by letting the defendants unilaterally redact large portions of their responsive documents on relevance grounds.”

This decision does not conclude relevance redactions are per se impermissible, but it reminds us, as practitioners, that engaging our adversary in a meaningful discussion about inter alia redactions, is good practice. Recall, the theme of late from the federal courts is “cooperation”. Here, there was a protective order in place and no compelling reason to apply the redactions at issue. Query whether had the lawyers spoken, the cost of motion practice and a subsequent (un-redacted) production could have been avoided. It seems lately that a collaborative approach is preferred by the Bench.  However, if such a meet and confer/discussion is not practical or possible, at least be prepared to provide compelling reasons why a robust “So Ordered” confidentiality agreement is not sufficient to protect the content of your client’s documents before unilaterally applying redactions.

United States v. New Mexico State Univ., No. 1:16-cv-00911-JAP-LF, 2017 WL 4386358 (D.N.M. Sept. 29, 2017)

This case, which arises from allegations of pay discrimination by New Mexico State University (“NMSU”) based on gender, in violation of Title VII, serves as an important reminder that all counsel – irrespective of one’s computer know-how – understand their ESI obligations and cooperate in good faith with opposing counsel when engaging in the process of retrieving electronically stored information (“ESI”).

BACKGROUND

In this pay discrimination case, the United States alleged that NMSU paid a female employee less than her male counterparts, although they were performing similar responsibilities for NMSU’s track and field program.  During discovery, plaintiff sought production of documents reflecting communications regarding her compensation; production of documents regarding her complaints concerning her pay; and production of documents regarding any other complaints of pay discrimination made by other coaches, trainers, etc.  Eventually, disputes arose over NMSU’s responses to plaintiff’s discovery requests and the United States filed a motion to compel.

In response, NMSU detailed the “more than 20” keyword searches it conducted (without conferring with plaintiff’s counsel) to locate documents responsive to the plaintiff’s requests.  Thereafter, the United States identified what it perceived to be inadequacies and deficiencies in NMSU’s searches notwithstanding the 14,000 pages of documents produced.  Before the Court could resolve the issue of the adequacy of searches, NMSU moved for a protective order to preclude further searching for responsive documents.

DECISION

Citing defense counsel’s failure to “adequately confer” before performing keyword searches that were “inadequate to reveal all responsive documents,” the Court concluded that “which searches will be conducted is left to the Court” and went on to order NMSU to conduct additional searches with specific terms.  The Court found defense counsel’s failure to confer with its adversary particularly troubling as “[t]he best solution in the entire area of electronic discovery is cooperation among counsel” and “[c]ooperation prevents lawyers designing keyword searches ‘in the dark, by the seat of the pants,’ without adequate discussion with each other to determine which words would yield the most responsive results.”

Here, the failure to adequately confer in good faith was the very reason for the inadequate searches.  The Court went on to observe:

Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI. Moreover, where counsel are using keyword searches for retrieval of ESI, they at a minimum must carefully craft the appropriate keywords, with input from the ESI’s custodians as to the words and abbreviations they use, and the proposed methodology must be quality control tested to assure accuracy in retrieval and elimination of “false positives.” It is time that the Bar—even those lawyers who did not come of age in the computer era—understand this.

[Citation omitted] [emphasis added].

CONCLUSION

While this decision does not actually state that counsel must disclose their ESI search terms to opposing counsel, it comes pretty darn close.  By commenting that transparency in all aspects of ESI preservation and production is necessary, this decision effectively obligates counsel to discuss with opposing counsel the intended search terms before executing on those terms.  Indeed, collaboration and cooperation are again held to be central to one’s discovery obligations.  And, here, counsel’s failure to meet and confer and engage the adversary in that process resulted in counsel earning the expensive right to repeat the process – this time with judicial weigh-in.  Perhaps equally important of a take-away from this decision – counsel’s lack of computer savvy does not extricate counsel from the obligation to understand one’s e-discovery obligations and attain competency in technological advances relevant to litigation in today’s E-centric world.

In a previous post we discussed generally the idea of a cooperative discovery process and highlighted how the proposed amendments to the Federal Rules embrace this principal (see, e.g., proposed amendments to Federal Rule Civil Procedure [“FRCP”] 1).  Here, we discuss how the concept of a cooperative discovery process– even apart from the specific mandates in the FRCP – is expected by the Courts.

Consider, for example, the several districts that have adopted local rules and standards for e-discovery that promote cooperation.  In the Eastern and Southern Districts of New York, for example, “[c]ounsel are expected to cooperate with each other, consistent with the interests of their clients, in all phases of the discovery process” (Local Rule 26.4).  Additionally, the Seventh Circuit, the Southern District of Illinois, the Northern District of California, and other federal Courts have adopted similar rules and guidelines. And, as recent developments in case law have shown (see, e.g., Boston Scientific Corp. v. Lee, 2014 WL 3851157 [N.D. Cal. 2014]), counsel is wise to adopt a cooperative approach to the discovery process.  Indeed, clients are best served by an attorney who is a master of dialogue rather than simply a master of debate.

In Boston Scientific, the Company brought suit against a former employee who began employment with a competitor immediately after resigning from Boston Scientific.  The new employer, after learning about the lawsuit, segregated defendant’s laptop and sent it to a third party e-discovery vendor.  Plaintiff sought forensic images of two laptops; the first that was initially segregated and a replacement laptop, both of which the former employee had been using.  As confirmed by the vendor, the second laptop contained trade secrets and other confidential information from a previous user. When the employer offered to have the first laptop reviewed for pertinent information, Boston Scientific declined the offer.   Thereafter, the court held that neither laptop was discoverable.  Not surprisingly, in the face of this ruling Boston Scientific sought promptly to accept the previous offer which the court would not allow.  The court notably stated:

“This case illustrates a recurring problem in all civil discovery, … A party demands the sun, moon and stars in a document request or interrogatory, refusing to give even a little bit. The meet and confer required by a court in advance of a motion is perfunctory at best, with no compromise whatsoever. But when the parties appear before the court, the recalcitrant party possesses newfound flexibility and a willingness to compromise. Think Eddie Haskell singing the Beaver’s praises to June Cleaver, only moments after giving him the business in private.”

Here, had counsel for Boston Scientific engaged in a cooperative approach to the discovery process, undoubtedly Boston Scientific would have been better served and likely counsel would have maintained credibility in the eyes of the Court.*

*For other decisional law illustrating the Courts’ frustrations with obstreperous or unreasonable discovery anticssee also Brown v. Tellermate Holdings Ltd., 2014 WL 2987051 (S.D. Ohio 2014); Straight Path IP Group, Inc. v. Blackberry Ltd., 2014 WL 3401723 (N.D. Cal. 2014); In re Domestic Drywall Antitrust Litig., 2014 WL 1909260 (E.D. Pa. 2014).

As those of you reading this well know, many studies and decisions show continued dissatisfaction with the discovery process. Remedies to this dissatisfaction that have gained traction are the ideas of cooperation, proportionality and reasonableness in the discovery process – the very themes that lay at the heart of the proposed amendments to the Federal Rules.

On April 29, 2015, in a letter to the United States Senate and House of Representatives, Chief Justice John Roberts submitted the proposed amendments to the FRCP for final congressional approval.  Specifically, C.J. Roberts stated that the amendments “[H]ave been adopted by the Supreme Court of the United States.”  This means, absent any legislation to reject or modify the proposed rules, they will become effective December 1, 2015.

Indeed, unless modified by an act of Congress, several new civil procedure rules will be effective this year, certain of which will impact discovery generally, including e-discovery.

For example, as amended, FRCP 37(e) seeks to impose a uniform standard relating to the remedies available by a court when ESI is not properly preserved and prejudice to the impacted party is found.  These remedies are, adverse inference, jury instruction or dismissal.  Rule 37(e), however, is applicable only when three criteria are met: (1) ESI is lost that “should have been preserved in the anticipation or conduct of litigation;” (2) because of a failure to take “reasonable steps;” and (3) the loss cannot be remedied by “additional discovery” designed to replace or restore the ESI.

Other FRCP amendments emphasize the recurring themes of the importance of cooperation, proportionality, and reasonableness in and the discovery process.  For example, FRCP 1 seeks to emphasize the need for cooperative advocacy in discovery.  Specifically, the proposed amendment specifies that clients share in the responsibility with the Court for achieving the Rule’s objective:

“[These rules] should be construed, and administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” The idea behind the amendment to Rule 1 is that the express reference to the litigants in the rule itself will prompt litigants and their lawyers to engage in more cooperative behavior.

While it may take more effort to engage in a cooperative, proportional and reasonable discovery process, doing so offers a multitude of benefits for attorneys and their clients, not the least of which may be a less expensive discovery process (i.e., fewer discovery disputes, limited motion practice, decreased potential for sanctions).

A little more than three years ago, federal Magistrate Judge Andrew J. Peck (SDNY), issued a seminal decision in Da Silva Moore v. Publicis Groupe & MSL Group, 11 Civ. 1279 (February 24, 2012).  Indeed, in that ruling, Judge Peck sent a message that predictive coding and computer assisted review is an appropriate tool that should be “seriously considered for use” in large data-volume cases and attorneys “no longer have to worry about being the ‘first’ or ‘guinea pig’ for judicial acceptance of computer-assisted review.”    Judge Peck went on to encourage parties to cooperate with one another and to consider disclosing the initial “seed” sets of documents.  In doing so, he recognized that sharing of seed sets is often frowned upon by counselors who argue that these sets often contain information wholly unrelated to the action, much of which may be confidential or sensitive.  Specifically Judge Peck stated: “This Court highly recommends that counsel in future cases be willing to at least discuss, if not agree to, such transparency [with seed sets] in the computer-assisted review process.”

Since Da Silva,  many cases have successfully employed various forms of technology assisted review (“TAR”) to limit the scope of documents actually reviewed by attorneys.  It is well-embraced that the upside of utilizing TAR is to make document review a more manageable and affordable task.  Moreover, Courts routinely embrace TAR for document review  See, e.g., Rio Tinto PLC v. Vale S.A., S.D.N.Y. No. 14 Civ. 3042 (RMB)(AJP) (March 3, 2015) (“the case law has developed to the point that it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it”).

In Rio Tinto, Judge Peck revisited his DaSilva decision. And, while most of Rio Tinto discusses the merits of transparency and cooperation in the development of seed sets, Judge Peck notes there is no definitive answer on the extent of transparency and cooperation required.   Citing to his opinion in DaSilva and other cases, Judge Peck makes clear that he “generally believe[s] in cooperation” in connection with seed set development. Nevertheless, Judge Peck notes there is no absolute requirement of transparent cooperation.  Rather, “requesting parties can insure that training and review was done appropriately by other means, such as statistical estimation of recall at the conclusion of the review as well as by whether there are gaps in the production, and quality control review of samples from the documents categorized as now responsive.” (emphasis added)

The decision goes on to emphasize that courts and litigants should not hold predictive coding to a so-called “higher standard” than keyword searches or linear review. Such a standard could very well dissuade counsel and clients from using predictive coding, which would be a step backward for discovery practice overall.