In re Viagra Products Liability Litigation, 16-02691 (N.D. Cali., Oct. 14, 2016) is a multi-district litigation (MDL) against drug company Pfizer. The litigation is based upon allegations of a correlation between anti-impotence drug Viagra and the incidence of melanoma in Viagra users. Fourteen separate lawsuits were consolidated into the California based MDL, and pretrial proceedings began with the parties working out the manner and scope of discovery. Recently, Plaintiffs filed a Motion demanding that Pfizer agree to perform its searches for electronically stored information (ESI) by using technology assisted review (TAR), also known as predictive coding. Plaintiffs asserted that TAR is more effective than the regular search term and query method and would save both sides time and money. Pfizer, however, expressed that it would rather use search terms to identify relevant documents through an iterative process different from TAR, In this proposed iterative process, Defendant proffered that search terms would be tested and validated, based upon their application to a set of sample documents.
The court stated that Plaintiffs did not cite any case law to support that Pfizer should be required to use TAR over its objection. Plaintiffs conceded this point at the hearing. The court further noted prior instances of courts declining to compel an objecting party to use predictive coding. The Viagra court further opined that the producing party should be able to decide how it will search for and produce its discovery. In denying Planitffs’ motion, the court also held that even if predictive coding was shown to be more efficient, there was insufficent basis to compel Defendant to use TAR when no was evidence had been submitted to show that Defendant’s chosen method would produce insufficient responses.