D.C. Court Finds that Low Precision Is Good Cause for Extending Discovery Schedule

Here's more on In re Domestic Airline Travel Antitrust Litig., 2018 WL 4441507 (D.D.C. 2018), discussed two nights ago.

Federal Rule of Civil Procedure 16(b) specifies that a discovery schedule can only be modified for good cause. In evaluating whether or not the Plaintiffs' inability to foresee that a Defendant's production would consist mainly of non-responsive documents was from a lack of diligence, Judge Kollar-Kotelly considered a validation protocol the parties agreed to which required the Defendant to provide a count of false negatives; true positives; and false positives, as well as overall estimated recall and precision percentages. The Defendant said that the recall from a control set was 85% and the precision was 58%. The Plaintiffs conducted their own analysis and found the recall to be 97.4% and the precision to be a very low 16.7%. The Defendant conceded that it had provided incorrect metrics. The Plaintiffs said that a production of 3.5 million documents only contained 600,000 that were responsive, and that they could not locate the responsive documents with their TAR tools.

The Court concluded that, "[h]aving reviewed the Protocol and the correspondence between counsel, and the declarations attached to the pleadings, the Court finds that Plaintiffs have demonstrated that despite exercising diligence, there are unforeseen or unanticipated matters which thwart their compliance with the deadlines previously set." Id. at *7.

Court rejects inquiry into doc review process

Last year Judge Colleen Kolkar-Kotelly issued a decision, In re Domestic Airline Travel Antitrust Litig., 2018 WL 4441507 (D.D.C. 2018) granting the Plaintiffs’ motion to extend the fact discovery deadline. The Plaintiffs contended that they needed more time to complete their document review and asked that previously scheduled depisitions be postponed. The Court rejected the Defendants’ request for information about the document review. “[T]he Court finds it unnecessary to require Plaintiffs to produce a list of attorneys working on this matter, or to engage in any additional review of monthly time reports.”. Id. at 6.

More on this decision later.

Prince Moves to Sanction

This past spring, Magistrate Judge Tony Leung issued a decision, Paisley Park Enter., Inc. v. Boxill, No. 17-cv-1212 (WMW/TNL),

2019 WL 1036058 (D. Minn. 2019) granting the Plaintiffs’ motion for sanctions for the spoliation of evidence. The estate of Prince brought a copyright infringement against a sound engineer who worked for the late signer.

The Defendants not only failed to disable the autodelete option on the cell phones of custodians containing relevant text messages but also intentionally wiped the content of the phones after they realized that litigation might arise.

Judge Leung fined the Defendants $10,000 but declined to issue an adverse inference instruction. “The Court believes that Plaintiffs’ request for an order presuming the evidence destroyed was unfavorable to the RMA Defendants and/or for an adverse inference instruction may well be justified. But given the fact that discovery is still on-going, the record is not yet closed, and the case is still some time from trial, the Court believes it more appropriate to defer consideration of those sanctions to a later date, closer to trial.”. Id. at 7.