The parties involved in In Re: Actos (Pioglitazone) Products Liability Litigation have been bound by the U.S. District Court for the Western District of Louisiana to utilize predictive coding technology in a cooperative manner. The Order (linked to below), outlines how they are working to manage their ESI discovery.
Specifically, the Order, issued by Judge Rebecca Doherty, noted that the parties "agree to meet and confer regarding the use of advanced analytics" as a "document identification mechanism for the review and production of this data." The parties will also confer and cooperate throughout the review process.
That protocol is particularly comprehensive. The parties not only agreed on the 13 sources of ESI and 29 custodians, but also agreed on the methodology of the review, the vendors and software to be used and other details.
They agreed to use Equivio's Relevance software for predictive coding of the document sets. They also elected that there should be three "experts" nominated by each side to review a sample population of documents that would ultimately train the software for the larger review. That group would all be trained on the software and work together to resolve any issues.
The defendant was allowed to pre-screen and review the sample document set(s) for privilege before making it available, and the plaintiff's "expert" reviewers were required to sign a non-disclosure agreement.
A bipartisan review team was also arranged to review a sample of the documents deemed irrelevant by predictive coding, to check the results and a sample of any documents with relevant scores that were not produced.
All documents above an agreed relevance score are to be manually reviewed by the defendants before being produced.
Importantly, they also agreed to the format of ESI to be produced, based on the type of document and the acceptable media on which it could be delivered.