Kleen Parties Resolve Predictive Coding Quarrel – For Now

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Predictive Coding in Kleen Products v. Packaging Corporation of America

In the closely watched case of Kleen Products v. Packaging Corp. of America (No. 10-5711, N.D. Ill.), plaintiffs tried to force the defendants to use predictive coding technology — which they term “Content-Based Advanced Analytics” or “CBAA” — in connection with defendants’ past and future document productions.  Defendants objected, claiming that their approach — which employed search terms they contend were adequately tested and validated — constituted a reasonable means of complying with discovery obligations.

After hearing arguments from both sides, Judge Nolan instructed the parties to try to reach a compromise before she issued any court rulings.  Many months later, the parties apparently have come to an agreement, and the plaintiffs have withdrawn their request, at least for now.

In the Stipulation and Order Related to ESI Search signed by Judge Nolan on August 21, plaintiffs “withdraw their demand that defendants apply CBAA” to documents collected in response to the First Request for Production of Documents.  Plaintiffs also agree not to ask defendants to use CBAA for any subsequent discovery requests up until October 1, 2013.  (For discovery served on or after that date, the parties agree to confer on the appropriate search methodology to be used.)

However, although plaintiffs withdrew their specific request for CBAA, they did not waive their objections to defendants’ particular search methodology, including “objections relating to defendants’ identification, collection, custodians, data sources, search terms, statistical validation, review or production of documents.”

Additional court rulings on these issues could come in September, so stay tuned.  And as for discovery requests after October 1, 2013?  I suppose we’ll have to wait and see.

Author Details
Senior Vice President, Discovery Strategy & Data Privacy/Security
A recognized thought leader in e-discovery, Maureen collaborates with the company’s clients and operations teams to develop innovative information strategies for legal discovery, compliance, and sensitive data protection. She speaks and writes frequently on significant issues in e-discovery and information governance, and participates actively in the Sedona Conference Working Groups on Electronic Document Retention and Production and Data Privacy and Security. Prior to DiscoverReady, Maureen was a partner at Paul Hastings LLP, where she represented Fortune 100 companies in complex employment litigation matters.
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