Alivecor, Inc. v. Apple, Inc.

Background

The dispute concerned discovery of electronically stored information, or ESI. Alivecor and Apple had agreed to an ESI discovery protocol that contemplated using technology-assisted review, or TAR. TAR uses an algorithm trained through human review to identify documents that may be relevant.

The opinion explains that TAR is evaluated using “recall,” the fraction of relevant documents identified, and “precision,” the fraction of identified documents that are relevant. The parties agreed to a 70% recall rate for their TAR process. After the parties could not agree on a deadline for substantially completing document production, Judge Kim set a deadline that was later extended to October 31, 2022.

Apple argued that Alivecor’s production was overinclusive and likely omitted responsive documents because of a flawed TAR algorithm. Alivecor responded that it had used a conservative TAR process and that Apple’s concerns were partly caused by overbroad discovery requests and search terms.

Prior Discovery Ruling and Standard of Review

The parties submitted the dispute to Judge Kim, who issued a summary denial of Apple’s motion on January 18, 2023. Apple then moved for relief from that non-dispositive discovery order. Under Federal Rule of Civil Procedure 72(a), a district court may modify or set aside a magistrate judge’s non-dispositive order if it is clearly erroneous or contrary to law. A ruling is clearly erroneous when review of the evidence leaves the reviewing court with a firm conviction that a mistake occurred.

Court’s Analysis

The court applied Federal Rule of Civil Procedure 26(e), which requires a party to supplement a discovery response when it learns that the response is materially incomplete or incorrect and the additional information has not otherwise been provided.

Apple asserted that it had conducted several tests showing that Alivecor’s TAR algorithm could not reliably distinguish responsive from unresponsive documents. But Apple did not support those assertions with evidence such as a declaration from the attorney who conducted the testing. Apple also did not provide examples of documents that the tests showed should have been identified as responsive but were not.

The court stated that discovery production need not be perfect. A producing party must take reasonable steps to identify and produce relevant documents. The court also relied on the principle that courts should not act as managers of a party’s internal review process without evidence of good cause, such as gross negligence, failure to produce specifically known or likely relevant documents, or other misconduct.

Disposition

The court concluded that Judge Kim’s ruling was not clearly erroneous and denied Apple’s motion for relief from the non-dispositive discovery order. This was a discovery ruling and did not decide the parties’ underlying claims.