Some in the legal world are crowing with delight over the detailed Order Regarding Search Methodology for Electronically Stored Information issued by Special Master Maura R. Grossman and U.S. Magistrate Judge Jeffrey T. Gilbert in In Re Broiler Chicken Antitrust Litigation. The 10-page order clearly fleshes out the protocol for technology-assisted review and is a wakeup call for those who may resist transparency, cooperation and meet and confers.
The Association of Certified E-Discovery Specialists (ACEDS) predicts that this Order, originally for a case on the alleged effort to manipulate the chicken supply and drive up profits, will gain momentum outside of chicken industry lawsuits.
“From de-duplication and email threading to sampling and recall, the Order covers an array of topics. And rest assured, Grossman adds in plenty of references to transparency, cooperation, and the importance of regular meet and confers.”
The Order is composed of three sections, which begin with the expectation of parties being “reasonably transparent” around document collection, search terms and the TAR process. ACEDS points out:
“Notably, throughout the Order, Grossman refers to this process as ‘TAR/CAL’ (CAL signifying Continuous Active Learning) and never once uses the term ‘predictive coding.’”
The Order also outlines the many culling technologies that can be applied before searching, such as the previously mentioned de-duplication and email threading as well as targeted collections. This is an important area, states ACEDS, in order to avoid any surprises in identifying the scope of documents selected for searching and TAR.
The second section of the order includes the expectation of the producing party to disclose the name of the TAR/CAL software and vendor; a general description of how the process will work, including how it will train the algorithm; a general description of the categories included or excluded from the process; and a list of the intended quality control measures.
The final section is around validation protocol, emphasizing, for example, quality-control and quality-assurance procedures to ensure a reasonable production consistent with the requirements of Federal Rule of Civil Procedure 26(g). The Order details, among many other items, what the sample should consist of: 500 documents selected at random from Subcollection C(1) and C(2) as well as 2,000 documents selected at random from Subcollection 1(c) if TAR is used.
Of note: While the Order was issued in the context of a document-intensive litigation, the validation method it offers is important because it could work for other matters, whether TAR or linear review.
In summary, the expectation that both parties will engage in several meet and confers is throughout the Order. Transparency and cooperation are a must and not for the birds.