MICHAEL J. LINGLE, SARA E. CRESSMAN, of Counsel THOMAS & SOLOMON, LLP Rochester, New York, Attorneys for Plaintiffs.
SUSAN C. RONEY, of Counsel NIXON PEABODY, LLP, Buffalo, New York, Attorneys for Defendants.
JONATHAN W. GREENBAUM, of Counsel COBURN & COFFMAN, PLLC Washington, D.C., Attorneys for Defendants.
DECISION and ORDER
LESLIE G. FOSCHIO, Magistrate Judge.
By order of Hon. William M. Skretny, dated January 6, 2010 (Doc. No. 252), this case was referred to the undersigned for all non-dispositive pretrial matters pursuant 28 U.S.C. § 636(b)(1)(A). Presently before the court is Plaintiffs' motion, filed October 5, 2012, to compel Defendants to meet and confer with respect to establishing an agreed protocol for implementing the use of predictive coding software; alternatively, Plaintiffs request the court to adopt and impose such protocol (Doc. No. 384).
Plaintiffs' motion requests an order compelling Defendants "to engage in meaningful meet and confer discussions regarding an ESI protocol with both parties' respective ESI experts/consultants; and an order that if the parties are unable to agree upon an ESI protocol by a deadline set by the Court, that each side submit its own proposed ESI protocol to the Court for a ruling as to which protocol should be adopted in this case." (Doc. No. 384) ("Plaintiffs' motion"). In support, Plaintiffs filed a Memorandum of Law In Support of Plaintiffs' Motion To Compel (Doc. No. 385) ("Plaintiffs' Memorandum") along with the Affirmation of Sarah E. Cressman (Doc. No. 386) ("Cressman Affirmation") attaching Exhibits A-G ("Cressman Affirmation Exh(s). ___"). Defendants opposed Plaintiffs' motion by filing on October 16, 2012 the Attorney Declaration In Opposition To Motion To Compel ESI Meet and Confer (Doc. No. 396) ("Declaration of Susan C. Roney" or "Roney Declaration") attaching Exhibits A-O ("Roney Declaration Exh(s). ___"), and a Memorandum of Law In Opposition To Motion To Compel ESI Meet and Confer (Doc. No. 397) ("Defendants' Memorandum"). On October 19, 2012, Plaintiffs filed a Reply Memorandum of Law In Further Support Of Plaintiffs' Motion To Compel (Doc. No. 404) ("Plaintiffs' Reply Memorandum"). Oral argument was deemed unnecessary. Based on the following, Plaintiffs' motion should be DISMISSED without prejudice.
This is an action for unpaid wages and overtime pay brought under the FLSA and state law on behalf of Defendants' hourly employees, particularly nurses, and other of Defendants' health care staff, clerical and maintenance workers. Plaintiffs' FLSA action has been conditionally certified; Plaintiffs' request for class certification on Plaintiffs' state law wage and hour claims is pending.
For well-over a year, the parties have attempted, without success, to agree on how to achieve a cost-effective review of Defendants' voluminous e-mails, estimated at 200-300, 000 using a key-word search methodology. At the last of a series of ESI discovery status conferences with the court, conducted June 27, 2012 (Doc. No. 361) ("the June 27, 2012 conference"), the court expressed dissatisfaction with the parties' lack of progress toward resolving issues related to completion of review and production of Defendants' e-mails using the key-word search method, and pointed to the availability of predictive coding, a computer assisted ESI reviewing and production method directing the parties' attention to the recent decision of Magistrate Judge Peck in Moore v. Publicis Groupe & MSL Group, 287 F.R.D. 182 (S.D.N.Y. 2012), approving use of predictive coding in a case involving over 3 million e-mails. At the June 27, 2012 conference, the parties were requested to submit a joint or individual protocols for a keyword search methodology, which the parties had been attempting, albeit unsuccessfully, to implement by August 14, 2012. Cressman Affirmation § 4; Cressman Exh. A at 53. Thereafter, by Decision and Order, filed July 20, 2012, (Doc. No. 365) ("July 20, 2012 D&O"), the court directed completion of ESI discovery by October 23, 2012, and completion of non-ESI discovery by January 23, 2013. July 20, 2012 D&O at 5. Following the July 20, 2012 D&O, Defendants and Plaintiffs engaged in e-mail communications with respect to establishing a protocol for completion of the ESI discovery relating to Defendants' e-mails. Cressman Affirmation § § 5, 7-19; Cressman Affirmation Exhs. B-E. In a September 7, 2012 e-mail, after informing Plaintiffs that Defendants intended to use predictive coding, Defendants objected to Plaintiffs' ESI consultants participating in discussions with Defendants relating to the use of predictive coding and establishing a protocol. Cressman Affirmation § 8; Cressman Affirmation Exh. C at 6. Plaintiffs requested discussion with Defendants of numerous search issues which Plaintiffs maintain required resolution to assure that predictive coding would be successful as a search method in this case. On September 25, 2012, Defendants nevertheless sent Defendants' ESI protocol to Plaintiffs and indicated Defendants would also send a list of Defendants' e-mail custodians. Cressman Affirmation § 15; Cressman Affirmation Exh. E. Plaintiffs objected to Defendants' proposed ESI protocol by letter dated October 1, 2012 in which Plaintiffs noted several technical issues which should be discussed with the assistance of Plaintiffs' ESI consultants and cooperatively resolved by the parties before any efforts by Defendants to implement predictive coding of Defendants' e-mails were initiated. Cressman Affirmation § 16, Cressman Affirmation Exh. F.
Plaintiffs contend that where a party intends to use predictive coding to assist in the review and production of ESI,  it is necessary that the parties negotiate a protocol to guide the use of predictive coding software for the case. Plaintiffs' Memorandum at 2 (citing Moore v. Publicis Groupe & MSL Group, 287 F.R.D. 182, 185 (S.D.N.Y. 2012) (Peck, M.J.) (where use of predictive coding is challenged court may require requesting party obtain documents that were used by producing party to "train" the computerassisted coding system). In Moore, the court noted that "[e]lectronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI.'" Moore, 287 F.R.D. at 191 (quoting William A. Gross Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 136 (S.D.N.Y. 2009) (Peck, M.J.)). Plaintiffs argue that Defendants refused to discuss with Plaintiffs several issues with the assistance of the parties' respective ESI consultants important to a cooperatively negotiated ESI protocol needed for this case. Cressman Affirmation § 9 (Defendants refused to discuss issues other than Defendants' custodians); Plaintiffs' Memorandum at 2 (Defendants "believe that the only issue they need to discuss with plaintiffs... is custodians."). More particularly, Plaintiffs maintain Defendants' position excludes Plaintiffs' access to important information regarding Defendants' selection of so-called "seed set documents" which are used to "train the computer" in the predictive coding search method. Plaintiffs' Memorandum at 2 (citing Moore, 287 F.R.D. at 190).
Defendants argue in opposition that Defendants have not refused to meet and confer regarding a protocol to facilitate ESI discovery using predictive coding; rather, Defendants maintain Defendants object to Plaintiffs' use of D4's ESI consultants on the ground that Plaintiffs' ESI consultant, D4, LLC ("D4") had previously provided services to Defendants in this case. Roney Declaration § 12 (referring to "the work that D4 had already done for [Defendants] on this same action."). The work performed for Defendants by D4 ...