In a recent decision out of Oklahoma (Curtis v. Progressive N. Ins. Co., No. CIV-17-1076-C [W.D. Okla. June 13, 2018]), District Judge Robin J. Cauthron ruled that non-party ESI subpoenaed pursuant to Rule 45 was not subject to the 100 mile-limitation found in the Rule.  Specifically, the Court held there is “no violation of the 100-mile limitation,” as the non-party “subpoena at issue does not require the travel or attendance of any witnesses and Plaintiff is requesting the production of electronic documents.”

Factual Background

After plaintiff was involved in two automobile collisions, Curtis’ insurance company (“Progressive”) engaged Mitchell International, Inc. (“MII”), to create valuations of total loss for its use.  Eventually, Curtis filed the instant lawsuit against Progressive, claiming breach of contract, bad faith, unjust enrichment, and fraud in connection with the valuation of Curtis’ vehicles.  During discovery, Curtis served non-party MII with a subpoena duces tecum requesting the production of documents relating to “the correspondence, purchase, and analysis of the [computer valuation system]” MII used to create valuations of total loss for Progressive (“Subpoena”).  Curtis’ attorneys served the Subpoena upon MII using MII’s Oklahoma registered agent.  MII served written objections to the Subpoena, and meet and confer sessions failed to resolve the impasse reached between MII and Curtis.  And so, Curtis filed a Motion to Compel Compliance with Subpoena (the “Motion”).

MII argued the Court lacked jurisdiction to hear the Motion because MII’s headquarters and principal place of business are located in San Diego, and the Subpoena required compliance more than 100 miles away in Shawnee, Oklahoma.

In response, Curtis argued that her subpoena was valid and enforceable because “a subpoena that commands a person to travel beyond the 100-mile boundary must be quashed however, a Court retains discretion to command compliance with a subpoena for documents which requires production beyond the 100-mile limitation.”

In granting the Motion, Judge Cauthron noted that “Federal district courts enjoy broad discretion over discovery measures” and further stated:

“Here, Plaintiff states—and Mitchell does not dispute—that the information requested can be produced electronically. Mitchell has an Oklahoma registered agent and Progressive Northern Insurance Company continues to use the valuation system licensed and provided by Mitchell in Oklahoma to conduct business. As a result, Mitchell regularly transacts business in Oklahoma. The subpoena at issue does not require the travel or attendance of any witnesses and Plaintiff is requesting the production of electronic documents. This Court finds that there is no violation of the 100-mile limitation for electronic documents…”

This case is a good reminder that the Rule 45 geographic restrictions relates to how far a subpoena-recipient can be compelled to travel in order to comply with a subpoena (see FRCP 45[c]) and that while the geographic limitation applies equally to parties, and party officers, who cannot be commanded to appear for trial outside of the geographic restrictions set forth in the Rule (FRCP 45[c], [d][3][A][ii]), it has no applicability to the production of ESI.

Traditional document review can be one of the most variable and expensive aspects of the discovery process.  The good news is that there are innumerable analytic tools available to empower attorneys to work smarter, whereby reducing discovery costs and allowing attorneys to focus sooner on the data most relevant to the litigation.   And, while various vendors have “proprietary” tools with catchy names, the tools available all seek to achieve the same results:  smarter, more cost effective review in a way that is defensible and strategic.

Today’s blog post discusses one of those various tools – predictive coding.  The next few blog posts will focus on other tools such as email threading, clustering, conceptual analytics, and keyword expansion.

Predictive Coding

Predictive coding is a machine learning process that uses software to take keyword searches / logic, entered by people, for the purpose of finding responsive documents, and applies it to much larger datasets to reduce the number of irrelevant and non-responsive documents that need to be reviewed manually.  While each predictive algorithm will vary in its actual methodology, the process at a very simplistic level involves the following steps:

  1.  Data most likely relevant to the litigation is collected. Traditional filtering and de-duplication is applied.  Then, human reviewers will identify a representative cross-section of documents, known as a “seed set,” from the remaining (de-duplicated) population of documents that need to be reviewed.   The number of documents in that seed set will vary, but it should be sufficiently representative of the overall document population.
  2.  Attorneys most familiar with the substantive aspects of the litigation code each document in the seed set responsive or non-responsive as appropriate. Mind you, many of the predictive coding software available allows users to perform classification for multiple issues simultaneously (i.e., responsiveness and confidentiality).  These coding results will then be input into the predictive coding software.
  3.  The predictive coding software analyzes the seed set and creates an internal algorithm to predict the responsiveness of other documents in the broader population.  It is critically important after this step that the review team who coded the seed set spend time sampling the results of the algorithm on additional documents and refine the algorithm by continually coding and inputting sample documents until desired results are achieved.  This “active learning” is important to achieve optimal results.  Simply stated, active learning is an iterative process whereby the seed set is repeatedly augmented by additional documents chosen by the algorithm and manually coded by a human reviewer. (This differs from “passive learning,” which is an iterative process that uses totally random document samples to train the machine until optimal results are achieved).

Once the team is comfortable with the results being returned, the software applies the refined algorithm to the entire review set and codes all remaining documents as responsive or unresponsive.

 

 

 

 

In Armstrong Pump, Inc. v. Hartman, No. 10-CV-446S, 2014 WL 6908867 (W.D.N.Y. Dec. 9, 2014), discovery in the breach of contract case was contentious, protracted and resulted in a multiple motions to compel, the first of which the court granted in favor of the defendant.  At that time, the court warned the plaintiff “not to engage in piecemeal production of materials it has located that are responsive to Optimum Energy’s unobjectionable requests.”  Not heeding the Court’s warning, Plaintiff subsequently produced documents on nine separate occasions.  At that time, Defendant learned, for the first time, of a “five-step development process,” that it believed was highly relevant to its claims in the case, and which caused it to believe that the plaintiff was withholding relevant documents from production.  Accordingly, Defendant filed a second motion to compel and sought sanctions for Plaintiff’s discovery behavior, including its delayed production of relevant information. 

The court granted in part Defendant’s second motion to compel and, in light of Plaintiff’s continued piecemeal production coupled with other discovery failures, fashioned a “new and simpler approach” to discovery, including the identification of 13 search terms/phrases to be utilized when searching “ALL [of Plaintiff’s] corporate documents, files, communications, and recordings. . .”  The court also ordered the plaintiff and all counsel of record to file a sworn statement confirming its “good-faith effort to identify sources of documents; that a complete search of those sources for each of the [identified] phrases occurred; and that the search results [were] furnished to [Defendant].”

In deciding the motion, the Court expressed its frustration with “the continual and growing animosity between the parties, an animosity that has slowed the progress of the case and that has required repeated judicial intervention.”  The court also noted that despite the bickering between parties, neither had ever filed a motion for a protective order “[n]or ha[d] any party foregone passive-aggressive snarking and filed a formal motion under Rule 11 or 28 U.S.C. § 1927 to complain about material misrepresentations in motion papers.”  “Instead,” the court continued, “the parties would prefer that the Court forget what the actual claims are in this case and start obsessing over details . . .” 

Reasoning that “[a] lawsuit is supposed to be a search for the truth, and the tools employed in that search are the rules of discovery,” that “[o]ur adversary system relies in large part on the good faith and diligence of counsel and the parties in abiding by these rules and conducting themselves and their judicial business honestly” and noting that “Rule 37 helps enforce proper conduct,”  the court indicated it would “fashion a new and simpler approach to discovery that keeps the core of Optimum’s counterclaims in mind.”  The court went on to state that it had “noticed” “[i]n the various discovery documents attached to the motion papers” that “certain phrases appear that inevitably refer to or hint at [the at-issue technology]” and that the phrases “open the door to a more objective discovery process that leaves Armstrong no room for gamesmanship.”  Thus, after identifying the terms/phrases specifically, the court ordered:

For a period starting from January 1, 2004 through the present time, Armstrong must search ALL corporate documents, files, communications, and recordings for EACH of the above phrases. Armstrong will maintain a list of every server, computer, file room, or other place searched, and a list of all positive search results. For each positive result, Armstrong will procure a full copy of the document in question. Armstrong also will furnish a complete and sworn description of its document retention policies, if any, from January 1, 2004 through the present time. In the specific instance of [REDACTED] reports, if for any reason a product did not have a written report for a certain stage or did not go through all five stages then someone at Armstrong with appropriate knowledge or expertise will provide a sworn statement explaining why. When the search is complete, a representative of Armstrong and all of Armstrong’s counsel of record will file a sworn statement confirming that Armstrong made a good-faith effort to identify sources of documents; that a complete search of those sources for each of the above phrases occurred; and that the search results have been furnished to Optimum. All of this must occur on or before April 1, 2015, with absolutely no exceptions or extensions. Failure to comply will lead to sanctions under Rule 37(b)(2)(A).

The court also warned Defendant that it would not hesitate to impose the same approach on its discovery and ordered that counsel of record file, by a date certain, a sworn statement that all discovery requests had been fulfilled, or a motion for a protective order. 

In light of this judicial reminder that courts favor a collaborative and efficient resolution of matters, and that Judges can, and will impose sanctions for egregious discovery violations, counsel should take seriously their obligations to be cooperative, diligent and timely during the discovery process irrespective of the courthouse in which we practice.