“Championing” the Preservation of Keywords in eDiscovery

Chad McManamy

Judge Nolan Suggests “Irish Charm” in Kleen Products

With less than four months remaining on the bench, Magistrate Judge Nan Nolan (Nolan \n(o)-lan\ that of Irish and Gaelic origin with a meaning of "champion"), is attempting to bring closure to the heated discovery dispute in the high profile Kleen Products, LLC et al. v. Packaging Corporation of America, et al., 1:10-cv-05711 case. At issue in the dispute is plaintiffs’ motion to order defendants into a do-over on their document collection and production process. The plaintiffs have moved the court to require defendants to use alternative technology (suggesting either “predictive coding” or “content based advanced analytics”) as opposed to the custodian-specific keyword search the defendants have already employed. The request came at a time when defendants were nearly finished with their collection and were preparing for production. As could be anticipated, the plaintiff’s untimely motion has provided an even more contentious discord between the parties. With a playful nod towards her lineage, during a March 28, 2012 hearing, Judge Nolan suggested the parties have a call with each other prior to a call with the court and that they each at least bring “whoever has the most charm, some Irish person . . .” to facilitate cooperation between the parties.

Apart from parties’ willingness or unwillingness to cooperate on discovery issues, the idea of technology assisted review has come to top of the agenda in many e-discovery discussions. Often overshadowed in these discussions is the continued need to use keywords in some capacity to search, collect cull, and review electronically stored information. In fact, keywords can be the starting point for initial sample set used to train the predictive coding algorithms. And since most litigants have experience negotiating keyword lists, this continues to be a good starting point for identifying potentially relevant data.

To her credit, Judge Nolan appears to making every effort to move the discovery disputes along. And, while she is not moving mountains for the parties, she is willing to accommodate their schedules to hold as many hearings as necessary and get a grasp on the oft confusing technical issues being argued. At one recent hearing, she foreshadowed her likely decision on plaintiff’s motion should they continue down the path of asking for the imposition of a completely different technology by stating her support for The Sedona Conference Principles for Electronic Document Production, Principle 6: Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.

Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.

Perhaps if the parties had employed TSC’s Principle 3 early in the discovery process, they could have avoided this costly expedition and monopolization of the courts precious resources.

Parties should confer early in discovery regarding the preservation and production of electronically stored information when these matters are at issue in the litigation and seek to agree on the scope of each party’s rights and responsibilities.

In one of the more straightforward statements to the court, counsel for one defendant speaking on behalf of all defendants stated:

We really believe both sides are trying to do the same thing which is to figure out who are the people and where are the places in the company where responsive, relevant information exists and how can we get it produced?

The difference is that because the plaintiffs are obviously coming to this without having worked at these companies, they need to describe things in a certain level of generality, and the companies very familiar with how their businesses work have attempted to identify the actual people who are doing the things that are the subject matter of the plaintiffs’ complaint.

If only it were that easy! The asymmetrical nature of this antitrust case could mean plaintiffs counsel’s discovery detour is more tactical than substantive. To date, plaintiffs have produced less than 1% of the volume of documents compared to the cumulative total of the seven defendants (roughly 25,000 pages for plaintiffs compared to around 3 million pages with additional productions likely to happen in the coming months for defendants). Waiting until the defendants were 99% finished with their collection and processing to demand an alternative approach would not likely have occurred in a case where the moving party would be subjecting itself to the same costs and burdens it is asking the court to impose on the other party. Incidentally, it is not clear if the plaintiffs employed the same technology for their collection and production that they are asking the court to impose on the defendants.

Given the conspiratorial nature of the allegations and the sophistication of the senior executives allegedly involved, plaintiffs attempted to force defendant’s to use technology assisted review to look for evidence to support their Sherman Antitrust claim. Judge Nolan took a different tact by getting an expert witness to agree to the viability of using a non-custodial Boolean search to accomplish this same goal. And while there are still many more steps necessary to resolve the discovery issues, Judge Nolan appears to have gotten the parties to engage in a dialog of modifying the keyword approach rather than abandoning it completely. In the famous words of Samuel Clemens (better known as Mark Twain) the son of a not so famous attorney and judge, “the reports of my death are greatly exaggerated.” So too are the reports of the death of keywords.

Unfortunately, Judge Nolan may be running out of time to get this across the finish line. Following a suggestion by plaintiff’s counsel, the parties met and conferred just prior to an April 19, 2012 hearing in an effort to get some scope around the issues. Based on these seven separate conferences, plaintiffs estimated to the court that just to get to a state of completed productions would take until the end of this year. Follow that with potential motions to compel and further procedural morass and this case may not get to the merits until Judge Nolan’s one year anniversary from leaving the bench. Should she continue “championing” an agreement between these parties involving a non-custodial Boolean search that moves the case forward before she leaves, it would be an amazing accomplishment and provide litigants in other cases to consider avoiding over-reliance on alternative technologies.