It Is Not ‘Either Or’: The Big Lesson From Judge Francis in ‘Diisocyanates’

Since e-discovery broke upon the legal landscape some 20-plus years ago, we have been repeatedly told that e-discovery is complex, technical, nuanced and difficult. While there may be truth in these words, the concept that e-discovery is unmanageable often obscures more simple truths. For example, one simple truth is that discovery is a self-executing process, and the producing party carries the obligation to execute discovery in a reasonable manner. Likewise, the law is rarely proscriptive about how this obligation can be met. There is no one reasonable way to accomplish a task, and generally there are many, many ways to conduct discovery reasonably. By returning to these foundational truths, Judge Francis, acting as Special Master in In re Diisocyanates Antitrust Litig., MDL No. 2862, 2021 WL 4295729 (W.D. Pa. Aug. 23, 2021), refused to fall into one of the most tempting discovery traps: If a producing party’s discovery solution has flaws, then I should adopt the solution of the requesting party. While some litigants may argue about Special Master Francis’s fact-intensive analysis and conclusions about search terms and TAR, the most important lesson to be learned is to not fall into the false dichotomy of picking between the two parties’ preferred approaches but instead to allow producing parties working in good faith to develop reasonable solutions that work best for them. Put another way: Even where the producing party’s discovery solution is flawed and the requesting party’s solution is reasonable, the court should not impose that solution on the producing party, but rather, the court should let the producing party find a reasonable solution that works best for it. This is the big lesson of Diisocyanates.

Special Master Francis’s opinion provides a thorough framework of the dispute with detail on the parties’ competing discovery proposals; however, for purposes of this article, providing that framework is not necessary though a summary is helpful for context. In Diisocyantes, the plaintiffs moved to compel under Rules 26 and 37 to require the defendants to apply certain search terms and TAR methodologies. In turn, the defendants cross-moved for a protective order to allow themselves to use their own search terms and TAR methodologies. Both parties had agreed that search terms could be used before applying TAR but provided the court with dueling search term proposals. In support of their positions, both parties offered hit rate percentages (of the number of documents hit by each search term) to the court, but Special Master Francis determined that hit rates were not indicative, for purposes of culling prior to TAR, of whether search terms were reasonable. Instead, Special Master Francis sought information to confirm whether the defendants’ proposed search terms were too narrow. Finding that the defendants had not completed such an analysis and that otherwise that defendants had not “shown that their own search terms will capture a reasonable proportion of responsive documents,” id. at *12, the defendants’ request to use their search terms was denied. The court also found that the defendants’ proposed TAR methodologies and validation processes were deficient in certain respects.