The tears of sadness shed by those in the eDiscovery community lamenting the end of the predictive coding debate in Kleen Products may turn to tears of joy when they realize that the debate could resurface next year. Despite early reports, the Plaintiffs in Kleen did not completely roll over on their argument that defendants should be required to use what they characterize as “Content Based Advanced Analytics” (“CBAA”). To the contrary, Plaintiffs preserved their right to meet and confer with Defendants about future document productions after October 1, 2013. Not surprisingly, future document productions could rekindle the fiery debate about the use of predictive coding technology.
The controversy surrounding Kleen Products, LLC, et. al. v. Packaging Corporation of America, et. al. was sparked earlier this year when Plaintiffs asked Judge Nolan to order Defendants to redo their previous productions and all future productions using CBAA. Among other things, Plaintiffs claimed that if Defendants had used “CBAA” tools (a term they did not define) such as predictive coding technology, then their production would have been more thorough. In June, I reported hearing transcripts indicated that 7th Circuit Magistrate Judge Nan Nolan was urging the parties to focus on developing a mutually agreeable keyword approach to eDiscovery instead of debating whether other search and review methodologies would yield better results. This nudging by Judge Nolan was not surprising considering at least some of the defendants had already spent considerable time and money managing the document production process using more traditional tools other than predictive coding.
In a new twist, reports from other sources surfaced recently, suggesting that the Plaintiffs in Kleen decided to completely withdraw their demands that Defendants use predictive coding during discovery. The news likely disappointed many in the electronic discovery space poised to witness a third round of expert testimony pitting more traditional eDiscovery approaches against predictive coding technology. However, any such disappointment is premature because those dreaming of an eDiscovery showdown in Kleen could still see their dreams come true next year.
On August 21, Judge Nolan did indeed sign a joint “Stipulation and Order Relating to ESI Search.” However, in the order the Plaintiffs withdrew “their demand that defendants apply CBAA to documents contained in the First Request Corpus (emphasis added).” Plaintiffs go on to stipulate that they will not “argue or contend that defendants should be required to use or apply the types of CBAA or “predictive coding” methodology… with respect to any requests for production served on any defendant prior to October 1, 2013 (emphasis added).” Importantly, the Plaintiffs preserved their right to meet and confer regarding the appropriate search methodology to be used for future collections if discovery continues past October of next year.
Considering the parties have only scratched the surface of discovery thus far, the likelihood that the predictive coding issue will resurface again is high unless settlement is reached or Defendants have a change of heart. In short, the door is still wide open for Plaintiffs to argue that Defendants should be required to use predictive coding technology to manage future productions, and rumors about the complete demise of predictive coding in the Kleen Products case have been exaggerated.