In Rabin v. Pricewaterhousecoopers, LLP, No. 16-cv-02276-JST (N.D. Cal. Aug. 8, 2017), Plaintiffs sought document production to begin on a rolling basis from August to October at the same time as the TAR model was iteratively refined and checked for accuracy. This timeline, Plaintiffs argued, would allow them to use the discovery in their conditional certification motion. Defendant claims that Plaintiffs are not entitled to ESI discovery prior to conditional certification, and that the production could not be completed in the timeframe suggested by Plaintiffs.
The Court disagrees with Defendant that Plaintiffs are not entitled to any ESI discovery to prepare their conditional certification motion. Although Plaintiffs are not entitled to complete discovery before their collective is conditionally certified, the Court sees no reason to prevent them from obtaining and using ESI discovery to support their motion. Nor has any party cited a case that clearly prohibits them from doing so.
Regarding whether it was possible Defendant to begin ESI production on a rolling basis starting in August 2017, the Court remained unconvinced that document production should be delayed until December 2017. The parties were close on search terms and Defendants did not show that developing TAR models will take months. The Court also understood that the TAR process requires attorney review of a few thousand documents but stated that this task should be completed within the next few weeks. Accordingly, although Plaintiffs’ proposed timetable was aggressive, it is not unreasonable, and the Court orders Defendant to begin production of ESI discovery no later than September 1, 2017.