None of Your Beeswax! (Or, Do I Have to Invite Opposing Counsel to my Predictive Ranking Party?)

When I was a kid, we had a ready retort when people got too personal with their questions or otherwise crossed the line into private territory. “None of your Beeswax,” is what we told them. It was meant to cut off the conversation and usually did. After all, there aren’t too many good comebacks to “None of your Beeswax.” Try saying, “Yes it is my beeswax,” with a straight face. And where do you go from there anyway?

That is essentially what U.S. Magistrate Judge Leslie G. Foschio said to the plaintiffs about predictive coding in the recent case of Gordon v. Kaleida Health (08-CV-378S(F) W.D. NY 2013). The plaintiffs demanded that their experts participate in the predictive coding process and the defense naturally objected.

“Motion dismissed,” ruled the magistrate. What the defense does with their predictive coding process is “none of your beeswax,” at least at this point. Come back later if you have a problem with what gets produced.

For a number of reasons, I think Judge Foschio was right.

The Discovery Process

The opinion came as a result of a motion by plaintiffs to compel defendants to establish an agreed protocol for predictive coding (often called technology assisted review or TAR). The underlying case involved claims under the Fair Labor Standards Act (FLSA) for unpaid overtime and wages allegedly owed to nurses and other health-care employees. A request for class-action certification was under consideration.

The parties were in an extended discovery battle. For more than a year, they had argued over the proper keyword search methodology to pare down between 200,000 and 300,000 emails that the defense had collected. Ultimately, the court got fed up with the delays and suggested the parties try predictive coding to see if might help (citing U.S. Magistrate Judge Andrew J. Peck’s opinion in Da Silva Moore v. Publicis Groupe, 287 F.R.D. 182 (S.D.N.Y. 2012)).

Not surprisingly, the parties could not agree on a predictive coding protocol either. The plaintiffs wanted their expert to participate in the process. The defense offered a list of custodians and something they called an ESI protocol.

The situation was complicated by the fact that plaintiffs’ predictive coding expert, D4, had worked for the defense coding paper documents in the same case. Defendants filed a separate motion to disqualify that was pending at the time of this order. There was the suggestion that defendants would have welcomed plaintiffs’ expert to participate in the predictive coding process so long as the expert was not from D4. (Judge Foschio later denied the motion to disqualify.)

Do I Have to Invite My Enemy to Join Me at the Table?

This case raises questions that have been at the top of the list for e-discovery professionals talking about TAR. “Can I do TAR on my own or do I have to invite the opposition to watch and, even worse, participate in the process? Indeed, do I even have to tell my adversary that I am using the technique? Or can I just produce what I decide to produce and let the chips fall where they may?

Those who have read Magistrate Peck’s opinion in Da Silva Moore  or the case management order in Actos (Pioglitazone) Products Liability Litigation, 2012 WL 6061973 (W.D. La. June 27, 2012) (Doherty, M.J.), might think the answer is yes. Indeed much of the related discussion has gone in that direction with overused words like “transparent” or “cooperation” clouding up the discussion. For some of us weaned on the adversary tradition, it seems like discovery has moved from an adversarial process to a group therapy session. Both sides get to play and should play together well.

But, at heart, the litigation process is not about cooperation, it is about retribution for wrongs done. I have yet to meet a trial lawyer who wants to be transparent with respect to trial strategy. That isn’t how the game is played. I play my cards and you play yours. If we don’t settle before trial, then we will see who wins in court.

Judge Foschio seemed to support the notion that cooperation isn’t required for predictive coding in dismissing plaintiffs’ motion, albeit without prejudice. In doing so, he seemed to be persuaded by the fundamental issue that interested me. Specifically:

Further, Defendants assert that 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.

The defense followed this up with the promise that they understood their responsibilities under Rules 26 and 34 of the Federal Rules of Civil Procedure and would follow them in the production. The plaintiffs asked the court to remind defendants of this obligation.

Ultimately, the court declined to “remind” defendants of their obligations in conjunction with predictive coding procedures and simply dismissed the motion without prejudice. In essence, the court told the plaintiffs to raise the issue in the future should they have any issues with what is ultimately produced.

Whose Beeswax Is It?

Do I have to invite the opposition to participate in the predictive coding process? Do I even need to tell them that I am using a predictive coding process in order to identify documents for review and production? Good questions and ones not clearly answered by Judge Foschio in Gordon v. Kaleida Health. On the one hand, he dismissed plaintiffs’ request to open the door to the predictive coding process and further refused to instruct the defense on their duties with respect to the process.

On the other, the motion may have turned on the defendants’ motion to disqualify D4 for working both sides of the case. It sounds as if the defense would have been fine working with other experts to carry out the predictive coding exercise. Would they let them stand behind and look over their shoulders as they coded documents? That remains to be seen. Perhaps further orders in this case will provide insight into their thinking. Whose beeswax is it anyway? Not mine.

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About John Tredennick

A nationally known trial lawyer and longtime litigation partner at Holland & Hart, John founded Catalyst in 2000. Over the past four decades he has written or edited eight books and countless articles on legal technology topics, including two American Bar Association best sellers on using computers in litigation technology, a book (supplemented annually) on deposition techniques and several other widely-read books on legal analytics and technology. He served as Chair of the ABA’s Law Practice Section and edited its flagship magazine for six years. John’s legal and technology acumen has earned him numerous awards including being named by the American Lawyer as one of the top six “E-Discovery Trailblazers,” named to the FastCase 50 as a legal visionary and named him one of the “Top 100 Global Technology Leaders” by London Citytech magazine. He has also been named the Ernst & Young Entrepreneur of the Year for Technology in the Rocky Mountain Region, and Top Technology Entrepreneur by the Colorado Software and Internet Association. John regularly speaks on legal technology to audiences across the globe. In his spare time, you will find him competing on the national equestrian show jumping circuit or playing drums and singing in a classic rock jam band.