Court Orders Defendants to Review Random Null Set of Documents Not Returned by Key Words
In City of Rockford v. Mallinckrodt ARD Inc., No. 17 CV-50107, No. 18 CV-379 (N.D. Ill. August 7, 2018), the United States District Court for the Northern District of Illinois adopted the parties’ proposed order establishing the production protocol for ESI with the inclusion of Plaintiff’s proposal that a random sample of the null set will occur after the production and that any responsive documents found as a result of that process will be produced.
In this matter, the parties agreed on several aspects of discovery, including a plan to use keyword searching and a protocol for agreeing on search terms, date restrictions, and custodial restrictions. However, the parties could not reach an agreement on what to do after the production of responsive documents. Defendants proposed that if “the requesting party reasonably believes that a certain category of requested documents exists that were not included in the production, the parties will meet and confer to discuss whether additional terms are necessary.” However, the plaintiffs proposed a random sampling of the null set (the documents not returned via search), as reflected in the following ESI protocol provision:
“The producing party agrees to quality check the data that does not hit on any terms (the Null Set) by selecting a statistically random sample of documents from the Null Set. The size of the statistically random sample shall be calculated using a confidence level of 95% and a margin of error of 2%. If responsive documents are found during the Null Set review, the producing party agrees to produce the responsive documents separate and apart from the regular production. The parties will then meet and confer to determine if any additional terms, or modifications to existing terms, are needed to ensure substantive, responsive documents are not missed.”
In ruling on the proposals in dispute, the court ruled that Plaintiff’s proposed sampling of the null set is reasonable under Fed.R.Civ.P. 26(g), stating that “Defendants provide no reason establishing that a random sampling of the null set cannot be done when using keyword searching. Indeed, sampling the null set when using keyword searching provides for validation to defend the search and production process…”
Further, the court ruled that sampling the null set is proportionate under Rule 26(b)(1), stating; “The Court’s experience and understanding is that a random sample of the null set will not be unreasonably expensive or burdensome. Moreover and critically, Defendants have failed to provide any evidence to support their contention…Indeed, the Court’s experience and understanding is that the random sample will not be voluminous in the context of a case of this magnitude.” In addition, the court addressed specific issues at hand in this particular case (the causes of action, the potential amount in controversy, asymmetrical discovery where Defendants have access to the vast majority of relevant information, the substantial resources of Defendants) and cited them as reasons why sampling of the null set was proportionate to this matter.
As a result, the court ordered a random sampling of the null set, determining that “Plaintiff’s proposed 95% confidence level with +/- margin of 2% is acceptable.”