Klein et al v. Facebook, Inc.

Filing 151

ORDER Partially Resolving 133 August 20, 2021 Discovery Dispute re ESI Protocol. Signed by Magistrate Judge Virginia K DeMarchi on 9/15/2021. (vkdlc2S, COURT STAFF) (Filed on 9/15/2021)

Case 5:20-cv-08570-LHK Document 151 Filed 09/15/21 Page 1 of 3

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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MAXIMILIAN KLEIN, et al.,
Plaintiffs,

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v.

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United States District Court
Northern District of California

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Case No. 20-cv-08570-LHK (VKD)

FACEBOOK, INC.,
Defendant.

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ORDER PARTIALLY RESOLVING
AUGUST 20, 2021 DISCOVERY
DISPUTE RE ESI PROTOCOL
Re: Dkt. No. 133

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The parties ask the Court to resolve disputes involving several provisions of their ESI

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protocol. Dkt. No. 133. The Court held a hearing on these disputes on August 31, 2021. Dkt.

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Nos. 142, 146. Thereafter, the Court issued an interim order requiring the parties to confer further

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and to make a further submission regarding the categories of documents that must be preserved

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and those that need not be preserved. Dkt. No. 145.

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This order resolves several remaining disputes concerning the ESI protocol. For the

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reasons stated on the record during the hearing and as further explained below, the Court orders as

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follows:

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1.

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The parties dispute whether the ESI protocol should include the following text proposed by

Statement of Sedona Principle No. 6

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Facebook: “Responding parties are best situated to evaluate the procedures, methodologies, and

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technologies appropriate for preserving and producing their own electronically stored

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information.” Dkt. No. 133 at 1-2. The Court will not require the parties’ ESI protocol to recite

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this statement, nor will the Court require that the parties adopt this principle in the abstract.

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Case 5:20-cv-08570-LHK Document 151 Filed 09/15/21 Page 2 of 3

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2.

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The parties disagree regarding what information a party should be required to disclose

Use of Technology Assisted Review

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regarding that party’s use of technology assisted review (“TAR”) and whether such review should

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be subject to an agreed or court-ordered protocol. Id. at 5.

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Given the volume of documents, any party may use TAR, predictive coding, or other

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machine learning tools to identify relevant and responsive documents for production and/or to

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exclude documents that are not relevant and responsive. The Court agrees with Facebook that it

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may not require any party to adopt a particular TAR protocol or to negotiate in advance the details

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of its implementation of TAR or a similar tool. See In re Viagra (Sildenafil Citrate) Products
Liability Litig., No. 16-md-02691-RS (SK), 2016 WL 7336411 at *1-2 (N.D. Cal. Oct. 14, 2016).

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United States District Court
Northern District of California

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However, the Court will require a party to disclose its intent to use any such tools. In addition, the

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Court will require the parties to discuss whether and how TAR or a similar tool will or will not be

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used in conjunction with search terms to identify potentially relevant and responsive documents.

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See, e.g., In re Valsartan, Losartan, and Irbesartan Products Liability Litig., 337 F.R.D. 610, 614

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(D.N.J. 2020) (contrasting use of TAR to prioritize documents for production with use of TAR as

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an alternative to use of search terms). Finally, any party that chooses to use TAR or a similar tool

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must be prepared to defend the sufficiency of the resulting document production if another party

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contends that the production is insufficient, just as it would if the party had chosen not to use such

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a tool. See In re Viagra, 2106 WL 73366411. at *2.

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3.

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The parties disagree regarding whether Facebook should be required to disclose, upon

Search Term Hit Reports

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request, the number of documents hit by each search term, the number of unique documents hit by

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each such term, and the total number of documents that would be returned by a particular search

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term list. Dkt. No. 133 at 5-6; Dkt. No. 133-1 (disputed language in sec. 5.c.). Plaintiffs argue

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that such a requirement should be part of the ESI protocol; Facebook disagrees.

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While the Court agrees that information about search term hits can be helpful in assessing

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whether a particular term is over- or under-inclusive, the Court will not require the parties to adopt

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plaintiffs’ proposed provision as part of the ESI protocol. However, the Court expects the parties
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Case 5:20-cv-08570-LHK Document 151 Filed 09/15/21 Page 3 of 3

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to exchange relevant information as the need arises in order to efficiently resolve disputes about

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the efficacy of particular search terms.

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4.

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The parties dispute when Facebook must provide a list of document custodians and about

Identity of ESI Custodians

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how those custodians should be identified. Dkt. No. 133 at 6-7. This dispute was not well-

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developed in the parties’ joint submission, and the Court believes that it is premature, as plaintiffs

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have not (at least as of the date of the hearing) served any document requests for which custodians

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might be identified.

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At this time, the Court will not require Facebook to disclose to plaintiffs the list of
custodians who received a litigation hold notice. The Court does expect Facebook to identify

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United States District Court
Northern District of California

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document custodians believed to have responsive documents after Facebook has an opportunity to

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review plaintiffs’ document requests. Thereafter, the parties should discuss how to proceed as part

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of their meet-and-confer process. To facilitate those discussions, if Facebook believes a particular

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custodian has documents that are duplicative of another custodians’ documents, Facebook may so

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indicate.

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IT IS SO ORDERED.
Dated: September 15, 2021

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VIRGINIA K. DEMARCHI
United States Magistrate Judge

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