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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.