by Julia Romero Peter, Esq.
In Gordon v. Kaleida Health, No. 08-CV-378S(F), 2013 WL 2250579 (W.D.N.Y. May 21, 2013), the court dismissed without prejudice Plaintiffs’ motion to compel Defendants to meet and confer to set up a protocol for using predictive coding (also known as technology assisted review or TAR); or in the alternative, have the court impose a protocol on the parties. In the underlying action, Defendants’ hourly employees sued Defendants for unpaid wages and overtime pay under the FLSA and state law.
For over a year, the parties tried to reach an agreement on a keyword search protocol for reviewing Defendants’ 200-300,000 e-mails. At a discovery status conference on June 27, 2012, the court, displeased with the lack of resolution; directed the parties to the use of TAR and the opinion in Da Silva Moore v. Publicis Groupe & MSL Group, 287 F.R.D. 182 (S.D.N.Y. 2012). In Da Silva Moore, the court approved using TAR to review in excess of three million e-mails. The court requested the parties to submit either a joint or their own protocols for a keyword search protocol to be established by August 14, 2012. In a July 20, 2012 decision and order, the court mandated completion of ESI discovery by October 23, 2012.
Taking heed, the parties attempted to establish a protocol via email exchanges. Eventually, Defendants notified Plaintiffs that they planned on using TAR. On September 27, 2012, they also objected to Plaintiffs’ ESI consultants being a part of discussions regarding using TAR and setting up a protocol.
In the motion at hand, Plaintiffs contended that Defendants would not discuss with Plaintiffs issues germane to the establishment of an ESI protocol with the involvement of Plaintiffs’ ESI consultants. Notably, Plaintiffs asserted that Defendants would not provide information relating to their selection of the seed set (the initial set of documents the computer uses to propagate coding on the remainder of the document population). Defendants argued that they did not refuse to “meet and confer,” but that they objected to Plaintiffs’ ESI consultant D4’s participation in the meetings. D4 previously performed work for Defendants in the same matter. Further, Defendants pointed out that in contravention to Plaintiffs’ alternative request, “courts do not order parties in ESI discovery disputes to agree to specific protocols to facilitate a computer-based review of ESI based on the general rule that ESI production is within the ‘sound discretion’ of the producing party.” Defendants also highlighted that in Da Silva Moore, the court did not mandate defendants to hand over the seed set documents to plaintiffs, but that defendants voluntarily provided them.
Ultimately, in light of Defendants’ willingness to “meet and confer” with Plaintiffs and their ESI consultants, excluding D4, to discuss Defendants’ ESI review employing TAR; the court dismissed Plaintiffs’ motion without prejudice.