Judge notes that while clowns are scary, ESI is not

City of Rockford v. Mallinckrodt ARD Inc.

In this case alleging pharmaceutical price-gouging, the court praised the parties’ cooperation before resolving “an impasse” regarding non-responsive information.

The court began this highly entertaining opinion by quoting Donald Rumsfeld regarding the distinction between known knowns and known unknowns. (It later managed to tie the Rumsfeld quote — and the scariness of clowns — in to ediscovery.) Observing that litigators, as a class, “are pessimists,” the court noted that answers can sometimes be good. Parties should not, therefore, reject the possibility of obtaining information about their data.

The case itself alleges that the defendant, pharmaceutical company Mallinckrodt ARD Inc., engaged in racketeering. The plaintiff, the City of Rockford, claims that Mallinckrodt improperly raised the price of its medication Acthar. Acthar treats both multiple sclerosis in adults and a “rare seizure disorder” in infants. The case is likely to “involve millions of documents,” with Mallinckrodt having an “astronomically larger” production than Rockford.

The court began by praising the parties for “generally work[ing] cooperatively” to agree on a discovery protocol. The court commended them for providing a “solid example that zealous advocacy is not necessarily incompatible with cooperation.” Most of their protocol, using keyword searches rather than technology-assisted review (TAR), was settled. However, the parties had “reached an impasse” concerning the null set: electronically stored information (ESI) that keyword searches deemed nonresponsive.

Rockford suggested that they randomly sample the null set to determine how many relevant documents their keyword searches had missed. The searching party would then produce any documents determined to be responsive, and the parties would again meet and confer. Mallinckrodt, by contrast, preferred not to search the null set. Rather, it suggested that parties propose any additional search terms they may seek.

The court paused here to insert an educational footnote regarding ESI and ediscovery generally. Addressing “litigators less familiar with ESI,” it urged, “don’t freak out.” “In life,” it noted, “there are many things to be scared of, including, but not limited to, spiders, sharks, and clowns — definitely clowns.” ESI, however, was not on that list. The court provided a variety of useful resources for those confused by the “terms and jargon” associated with ediscovery.

Continuing with its opinion, the court cited the “growing chorus” of authorities praising TAR as superior to keyword searches. However, the parties here had agreed not to use it. The court was loath to “preach party cooperation and then unilaterally reject the reasonable process the parties agreed to use.” (The court further supported its argument by citing an episode of The Simpsons.)

Returning to Rumsfeld, the court clarified the known known: in any search method, “some relevant documents will be missed.” On the other hand, the quantity of those missed documents was the known unknown.

Fortunately, there’s a way to answer that unknown, by randomly sampling the null set for responsiveness, as Rockford proposed.

The court turned to whether random sampling would be a reasonable inquiry under Federal Rule of Civil Procedure 26(g). It concluded that it would; indeed, randomly sampling the null set is a routine validation process in TAR. Nor did Mallinckrodt provide any reason it shouldn’t be used to validate the keyword searches.

Next, the court considered whether sampling would be proportional under Rule 26(b)(1), again concluding that it would. Mallinckrodt argued that it would be “expensive and burdensome,” yet did not support that assertion with evidence. The court noted that “the potential amount in controversy is extraordinary,” making this a “bet the company” case. Mallinckrodt is “a large international pharmaceutical company with substantial resources” at its disposal. Further, the ESI in question “will play a key role in resolving the issues” in dispute.

The court therefore ordered the parties to conduct a random sample of the null set after keyword searching.

Takeaways on Cooperating With an Opponent

Unlike most cases that recount litigants’ unimaginably bad behavior, this opinion heaped praise on the parties for diligently trying to resolve their own disputes. As the court noted, “This is the type of [discovery] process courts routinely require, but see less often.” Cooperation doesn’t call for acquiescence to every request, but it does demand thorough preparation. Make sure you have a firm grasp on the quantity, quality, and location of your ESI before you confer about ediscovery.

Questions about ESI management? We’re here to help.

Contact Us