Court Rules that Predictive Coding Be Applied Prior to Search Terms For ESI Production
FCA US, LLC v. Cummins, Inc., Case No. 16-12883 (E.D. Mich., Mar. 28, 2017) is a dispute over the allocation of the cost incurred for an auto part that became the subject of a recall. Defendant part manufacturer was sued by Plaintiff vehicle manufacturer. The engines manufactured by Defendant were installed in 130,000 of the trucks manufactured by Plaintiff. These engines were later found to exceed U.S. pollution limits, and therefore became subject to recall. The cost of the recall of the vehicles amounted to approximately $200,000.00. A dispute then arose as to the allocation of the cost of the recall between Plaintiff and Defendant, with an ensuing lawsuit and discovery.
During discovery, although the parties agreed upon most discovery and eDiscovery issues, including the use of technology assisted review (TAR), or predictive coding, they could not agree upon whether the electronically stored information (ESI) that would be subject to TAR review should first be culled using search terms. Defendant argued that prior culling by search terms was appropriate, but Plaintiff disagreed, and the parties sought court intervention to resolve the issue.
The court held that as a preliminary matter the parties should have been able to resolve the issue without court intervention. Agreeing with Plaintiff’s argument, the court then proceeded with its ruling that predictive coding should be applied to the universe of ESI in the case prior to using any search terms. In other words, the court ruled that the “preferred method” was to initially apply predictive coding to all ESI to reduce the size of the ESI pool, and then, secondly, to use search terms for further reduction. The court therefore entered the proposed order submitted by Plaintiff.