Bridgestone Americas, Inc. v. International Business Machines Corporation

Filing 89

ORDER: Telephone Conference held on 6/25/2014, concerning Bridgestone's request to use predictive coding in reviewing something over two million documents for responsiveness. Signed by Magistrate Judge Joe Brown on 7/21/14. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
BRIDGESTONE AMERICAS, INC.,

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Plaintiff
v.
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant

No. 3:13-1196
Judge Sharp/Brown
Jury Demand

O R D E R
The
conference

Magistrate

with

Bridgestone’s

the

request

Judge

conducted

parties

on

to

predictive

use

June

a
25,

lengthy
2014,

coding

in

telephone
concerning
reviewing

something over two million documents for responsiveness. Defendant
has opposed this request as being an unwarranted change in the
original case management order (Docket Entry 54) and on the grounds
that it is unfair to use predictive coding after an initial
screening has been done with search terms.
Both parties have provided extensive pleadings in the
matter (see Docket Entries 83 through 88).1
Predictive coding is a rapidly developing field in which
the Sedona Conference has devoted a good deal of time and effort
to, and has provided various best practices suggestions. Magistrate

1

In this connection, Bridgestone’s original submissions on this were
done in the form of a letter and exhibits (Docket Entry 88-1 through 889), which is now attached to their reply (Docket Entry 88). The
attachments to Docket Entry 88 were the basis for IBM’s response (Docket
Entry 85). The reply to that response is Docket Entry 88. This hopefully
will put the sequence of pleadings in order.

Judge Peck has written an excellent article on the subject and has
issued opinions concerning predictive coding. Certainly, this
Magistrate Judge could try to write an extensive opinion, going
into various cases which have allowed and denied predictive coding.
In the final analysis, the uses of predictive coding is a judgment
call, hopefully keeping in mind the exhortation of Rule 26 that
discovery be tailored by the court to be as efficient and costeffective as possible. In this case, we are talking about millions
of documents to be reviewed with costs likewise in the millions.
There is no single, simple, correct solution possible under these
circumstances.
The
predictive

Magistrate

coding

on

the

Judge

will

documents

permit
that

Plaintiff

they

have

to

use

presently

identified, based on the search terms Defendant provided.
The Magistrate Judge believes that he is, to some extent,
allowing Plaintiff to switch horses in midstream. Consequently,
openness and transparency in what Plaintiff is doing will be of
critical importance. Plaintiff has advised that they will provide
the seed documents they are initially using to set up predictive
coding. The Magistrate Judge expects full openness in this matter.
Defendant, while not offering predictive coding as part
of its products, is nevertheless a sophisticated user of advanced
methods for integrating and reviewing large amounts of data.

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The Magistrate Judge expects the parties to communicate,
through their attorneys and experts and companies doing the work,
on a frequent and open basis.
The Magistrate Judge understands that the October 1st date
set for this initial production will undoubtedly have to be
modified. Both parties have expressed an interest in keeping this
case moving and preserving the trial date we have. The Magistrate
Judge is perfectly willing to modify the case management order,
particularly if the parties have agreed amendments.
In this connection, the parties are directed to confer as
needed and, if they reach a sticking point, not allow it to go too
far before scheduling a telephone conference or request an in-court
hearing with the Magistrate Judge about the issue. What the
Magistrate Judge is particularly concerned about is that the case
not get tied up in unnecessary wrangling.
Defendant has advised that they are somewhere between
one-third and one-half completed with their manual review of their
documents set. Nothing in this order is intended to prohibit
Defendant from switching to predictive coding if they believe it
would in the end be more efficient, given the Magistrate Judge’s
order to allow the Plaintiff to use predictive coding.
It is so ORDERED.
/s/
Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

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