Firm Secures Important E-Discovery Decision on Technology-Assisted Review

April 24, 2013

Last week, Patterson Belknap obtained a significant victory in a discovery dispute over the use of technology-assisted review — a machine-learning technology that can considerably reduce discovery costs. Application of this technology to electronic discovery is relatively recent, with limited legal guidance to date. This decision helps to define the contours of a defensible technology-assisted document review process.

This matter is a multi-district product liability litigation involving hip implants in the U.S. District Court for the Northern District of Indiana, in which Patterson Belknap is representing the defendant manufacturer. The discovery dispute arose, in part, because the parties disagreed on two key issues: (1) whether the defendant permissibly used search terms to reduce document volume prior to applying technology-assisted review, and (2) whether the defendant improperly trained the software unilaterally and not jointly with the plaintiffs. The plaintiffs argued that despite the discovery efforts already expended by the defendants in individual cases prior to consolidation, discovery should restart so that the technology-assisted review software could be applied to the entire document collection and trained jointly by the parties. Patterson Belknap argued that its client conducted discovery in a reasonable, effective, and transparent manner and that restarting discovery would be unnecessary, prohibitively expensive, and inconsistent with the purpose of consolidating pre-trial discovery in a multi-district litigation.

The Court found that the defendant’s process “complie[d] fully with the requirements of Federal Rules of Civil Procedure 26(b) and 34(b)(2).” In response to the plaintiffs’ demand for joint training, the court observed that the principles of cooperation do not “requir[e] counsel from both sides to sit in adjoining seats while rummaging through millions of files that haven’t been reviewed for confidentiality or privilege.” After weighing the proportionality factors set forth in Fed. R. Civ. P. 26(b)(2)(C), the Court ruled in favour of the defendant: “I can’t find that the likely benefits of the discovery proposed by the [plaintiffs] equals or outweighs its additional burden on, and additional expense to [the defendant].” The Court also determined that cost-shifting was appropriate and that if plaintiffs wanted to proceed in their preferred manner, they would have to bear the multi-million dollar expense.

The Court’s order can be found here.