FCA US LLC v. Cummins, Inc.

Filing 69

MEMORANDUM AND ORDER REGARDING ELECTRONIC DISCOVERY DISPUTE Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
FCA US LLC,
Plaintiff,
vs.

Case No. 16-12883

CUMMINS, INC.,

HON. AVERN COHN

Defendant.
_____________________________/
MEMORANDUM AND ORDER REGARDING ELECTRONIC DISCOVERY DISPUTE
I.
This is a dispute between FCA US, LLC (FCA) and Cummins Inc. (Cummins)
over a part installed in certain model year 2013-2015 Ram 2500 Pickup trucks with
Cummins 6.7 L diesel engines (the vehicles). FCA manufactures the vehicles which
contain the part provided by Cummins. The part is subject to a recall. The lawsuit is
over the division of financial liability for the cost of the recall.
II.
The parties are engaged in discovery. They are currently in a dispute over the
protocol for electronic discovery, particularly regarding the use of technology-assisted
review (TAR). TAR, broadly defined, is a process to collect and classify large amounts
of electronic material using computer software. The dispute is described in a series of
letters to the Court and proposed orders. While the parties agree on many issues
relating to discovery and particularly electronic discovery, they unfortunately cannot
reach agreement over whether the universe of electronic material subject to TAR review
should first be culled by the use of search terms. FCA takes the position that the

electronic material subject to TAR review should not first be culled by the use of search
terms. Cummins takes the position that a pre-TAR culling is appropriate. They have
left the matter for the Court to decide. The Court does so rather reluctantly. Given the
magnitude of the dispute and the substantial matters upon which they agree, the parties
should have been able to resolve the discovery issue without the Court as decision
maker.
Be that as it may, having reviewed the letters and proposed orders together with
some technical in-house assistance including a read of The Sedona Conference TAR
Case Law Primer, 18 Sedona Con. J. __ (forthcoming 2017), the Court is satisfied that
FCA has the better postion. Applying TAR to the universe of electronic material before
any keyword search reduces the universe of electronic material is the preferred method.
The TAR results can then be culled by the use of search terms or other methods.
Accordingly, the Court shall enter FCA’s proposed order.1
SO ORDERED.
S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: March 28, 2017
Detroit, Michigan

1

There are other minor revisions proposed by Cummins over which the Court
strongly suggests that the parties meet and confer. In the event they reach agreement
on any revisions, FCA shall submit a revised order for entry on notice.
2