Dennis Andrews v. Pfizer, Inc.

Filing 94

ORDER by Magistrate Judge Sallie Kim in case 3:15-cv-04884-RS; denying (99) Motion to Compel in case 3:16-md-02691-RS. (rmm2S, COURT STAFF) (Filed on 10/14/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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IN RE: VIAGRA (SILDENAFIL CITRATE)
PRODUCTS LIABILITY LITIGATION

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_____________________________________
This Document Relates to:

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ALL ACTIONS.

ORDER REGARDING
ELECTRONICALLY STORED
INFORMATION DISCOVERY
Regarding Docket No. 99

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United States District Court
Northern District of California

Case No. 16-md-02691-RS (SK)

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Now before the Court is the dispute between the parties regarding the approach for

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defendant Pfizer, Inc. (“Pfizer”) to search for electronically stored information (“ESI”). Plaintiffs

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urge the Court to order Pfizer to use technology assisted review (“TAR”) and/or predictive coding

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with Plaintiffs’ input to identify the locations of relevant information and the responsive ESI from

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those locations. Plaintiffs argue that TAR and/or predictive coding is a more sophisticated tool

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than the traditional search term or search query approach, and that using that suggested approach

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would save time and money for both sides. Moreover, Plaintiffs want representatives from both

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parties to participate in process of creating and working with the search process in this iterative

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process.

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Pfizer instead proposes that it use search terms to identify potentially relevant documents.

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Pfizer describes its preferred methodology an iterative process – albeit not the same iterative

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process as TAR and/or predictive coding – in which Pfizer tests search terms and validates them

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using rigorous sampling of potentially responsive documents. Initially, Pfizer tests and validates a

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number of search terms by applying those terms to a sample set of documents, reviewing the

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documents for responsiveness, and verifying that the search terms yield high rates of response. In

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Pfizer’s proposed process, the parties then exchange lists of proposed search terms. Pfizer states

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that it will agree to use any of the proposed search terms that appear on both parties’ lists. Pfizer

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will then use a sampling of the documents that do not contain the parties’ agreed terms to

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determine the responsiveness rates of the remaining proposed search terms on Plaintiffs’ list. In

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Pfizer’s proposed process, the parties then negotiate which additional search terms, if any, Pfizer

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will agree to use, based upon the previous searches and their results.

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As Pfizer points out, Plaintiffs do not cite to any case law in support of their proposal to

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require Pfizer, over its objection, to use TAR and/or predictive coding. At the hearing on this

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matter, Plaintiffs conceded that no court has ordered a party to engage in TAR and/or predictive

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coding over the objection of the party. The few courts that have considered this issue have all

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declined to compel predictive coding. See, e.g., Hyles v. New York City, 2016 WL 4077114, at *23 (S.D.N.Y. Aug. 1, 2016); see also In re Biomet M2a Magnum Hip Implant Prod. Liab. Litig.,

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United States District Court
Northern District of California

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2013 WL 1729682, at *2-3 (N.D. Ind. Apr. 18, 2013).

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As the court reasoned in Hyles, the responding party is the one best situated to decide how

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to search for and produce ESI responsive to discovery requests. Id., 2016 WL 4077114 at *3. The

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responding party “can use the search method of its choice. If [the propounding party] later

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demonstrates deficiencies in the . . . production, the [responding party] may have to re-do its

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search. But that is not a basis for Court intervention at this stage of the case.” Id. “[I]t is not up

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to the Court, or the requesting party . . ., to force the . . . responding party to use TAR when it

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prefers to use keyword searching. While [the propounding party] may well be correct that

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production using keywords may not be as complete as it would be if TAR were used . . ., the

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standard is not perfection, or using the “best” tool . . ., but whether the search results are

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reasonable and proportional. Id. (citing Fed. R. Civ. P. 26(g)(1)(B)); see also In re Biomet M2a

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Magnum Hip Implant Prod. Liab. Litig., 2013 WL 1729682 at *2 (holding that party was not

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required to conduct TAR after already producing responsive documents, reasoning that the issue

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before the court was not whether predictive coding was better but whether the responding party

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satisfied its discovery obligations).

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The Court finds Hyles well-reasoned. Even if predictive coding were a more efficient and

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better method, which Pfizer disputes, it is not clear on what basis the Court could compel Pfizer to

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use a particular form of ESI, especially in the absence of any evidence that Pfizer’s preferred
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method would produce, or has produced, insufficient discovery responses. Therefore, the Court

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HEREBY DENIES Plaintiff’s motion. The parties shall use Pfizer’s proposed language in

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paragraph 6 of the stipulated order. This Order is without prejudice to revisiting this issue if

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Plaintiff contends that Pfizer’s actual production is deficient.

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IT IS SO ORDERED.
Dated: October 14, 2016
______________________________________
SALLIE KIM
United States Magistrate Judge

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United States District Court
Northern District of California

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