We reported on the debate over predictive coding in the antitrust case Kleen Products, LLC, et. Al. v. Packaging Corporation of America, et. Al., back in April. The plaintiffs argued that discovery should be conducted using predictive coding because of deficiencies in the defendants’ keyword search methodology. The defendants had already completed 99% of discovery and were unwilling to comply with this request.
Following two evidentiary hearings before US magistrate Judge Nan Nolan, the plaintiffs have withdrawn their demand that the defendants conduct discovery again using predictive coding as of August 22. Judge Nolan previously urged the parties to focus on developing a mutually agreeable method to conduct keyword searches, rather than debating the merits of predictive coding. This may not come as a huge surprise given the onerous burden that conducting discovery again (with or without predictive coding) would place on the defendants.
For spectators eager to see predictive coding in action, this development will come as disappointing news, especially following the recent breakdown in cooperation between parties in Da Silva Moore. Stay tuned.