S.D.N.Y.: CAL Software Name and Workflow Makes Discovery Transparent

Today, Magistrate Judge James L. Cott issued a decision in an employment discrimination case, Kaye v. New York City Health & Hosps. Corp., 18-CV-12137 (JPO) (JLC), 2020 U.S. Dist. LEXIS 9240 (S.D.N.Y. Jan. 21, 2020), denying the Plaintiff’s motion for judicial intervention regarding the Defendants’ ESI production. The Court faulted the parties for failing to meet and confer about discovery including such issues as the defendants’ neglecting to submit a privilege log. The Plaintiff failed to submit evidence to show the discovery process had been skewed. Discovery on discovery will only be allowed where there is a factual basis for it, and the cost and length of discovery won’t be extended “ad infinitum.” *4. The Plaintiff did not show a basis on which to review the Defendants’ search terms and culling protocol, since no deficiency was shown in the production.    “In this case, defendants have represented that they have provided detailed information regarding the collection criteria they used, the name of their continuous active learning ("CAL") software, their CAL review workflow, and how they intend to validate the review results. That is sufficient information to make the production transparent.” Id. at *4. The Plaintiff did not show a basis on which to review the Defendants’ search terms and culling protocol, since no deficiency was shown in the production.