Klein v. Meta Platforms, Inc.

Background

The parties asked the court to resolve several remaining disputes about their electronically stored information (ESI) protocol—the procedures governing the preservation, search, and production of electronically stored information in discovery. The court had held a hearing and had previously required the parties to confer further about which document categories had to be preserved.

Rulings

Sedona Principle No. 6. Facebook proposed adding a statement that responding parties are best situated to evaluate the procedures, methods, and technologies for preserving and producing their own ESI. The court did not require the parties’ protocol to include that statement and did not require the parties to adopt the principle in the abstract.

Technology-assisted review. The court permitted either party to use technology-assisted review, predictive coding, or other machine-learning tools to identify documents for production or exclude documents that were not relevant and responsive. The court would not require a party to use a particular technology-assisted-review protocol or negotiate its implementation in advance. However, a party using such a tool had to disclose that intention and discuss with the other party whether and how the tool would be used with search terms. A party using the technology also had to be prepared to defend the adequacy of its production if another party challenged it.

Search-term hit reports. The plaintiffs sought requirements that Facebook disclose, upon request, the number of documents identified by each search term, the number of unique documents identified by each term, and the total number of documents returned by a search-term list. The court recognized that this information could help assess whether search terms were too broad or too narrow, but did not require the parties’ ESI protocol to include those specified reporting requirements.

ESI custodians. The court found the dispute about when and how Facebook had to identify document custodians premature because, as of the hearing, the plaintiffs had not served document requests for which custodians could be identified. The court therefore did not require Facebook at that time to provide the plaintiffs with a list of custodians who had received litigation-hold notices. The court expected Facebook to identify custodians believed to have responsive documents after reviewing the plaintiffs’ document requests. The parties were then to discuss the next steps through their meet-and-confer process. Facebook could identify any custodian whose documents it believed were duplicative of another custodian’s documents.

Disposition

Judge Demarchi issued an order partially resolving the discovery dispute concerning the ESI protocol. The order addressed the listed discovery issues but did not resolve the underlying merits of the case.