Vol. 1/Case 3

By: Jared Harary, Esq. and Yitzy Nissenbaum, Esq.

In re Viagra (Sildenafil Citrate) Prods. Liab. Litig., Case No. 16-md-02691-RS (SK), 2016 U.S. Dist. LEXIS 144925 (N.D. Ca., Oct. 14, 2016)

This case, from the Northern District of California, is a multidistrict litigation in which Plaintiffs claim that Viagra caused some users to develop melanoma (skin cancer).  The case relates to technology-assisted review (“TAR”) and aligns with the decision of Judge Peck in Hyles v. New York City, 2016 U.S. Dist. LEXIS 100390, 2016 WL 4077114 (S.D.N.Y. Aug. 1, 2016), to indicate that, at present, District Courts will not compel a party to employ a particular search methodology or technology.

At issue is Plaintiffs’ motion that the Defendant, Pfizer Inc. (“Pfizer”), be ordered to use TAR and/or predictive coding to search and produce documents in the litigation.

Plaintiffs reasoned that TAR and/or predictive coding is more sophisticated than traditional search queries and would “save time and money for both sides[,]” allowing both sides to cooperate in formulating the search process using this “iterative process”.  In re Viagra (Sildenafil Citrate) Prods. Liab. Litig., Case No. 16-md-02691-RS (SK), 2016 U.S. Dist. LEXIS 144925, *50 (N.D. Ca. Oct. 14, 2016).

Pfizer countered that it should be allowed to use its own preferred “iterative” methodology, wherein Pfizer would sample its own search terms to validate that they yielded high rates of responsiveness.  Subsequently, the parties would exchange proposed search terms, with Pfizer agreeing to use any terms that appeared on both lists.  Any of the remaining terms on Plaintiffs’ proposed search term list would then be run against documents not hit by the agreed terms, and based on the frequency of those hits, the parties could negotiate the use of additional terms.

Ultimately, the Court declined to order Pfizer to use TAR and/or predictive coding.  The Court noted that, as argued by Pfizer, “no court has ordered a party to engage in TAR and/or predictive coding over the objection of the party.”  Id. at *51; see Hyles at *3 (S.D.N.Y. Aug. 1, 2016), (stating that “it is not up to the Court, or the requesting party . . . , to force the . . . responding party to use TAR when it prefers to use keyword searching.”).

The court acknowledged that the Plaintiffs “may well be correct that production using keywords may not be as complete as it would be if TAR were used . . . ,” but noted as per the court in Hyles that the FRCP standard is not “perfection” or the “best” tool, but rather “reasonable and proportional” See Hyles,*3 (citing Fed. R. Civ. P. 26(g)(1)(B)).

Based on this reasoning, the Court denied Plaintiffs’ motion, but left open the possibility of “revisiting this issue” if Plaintiffs were to find evidence of any deficiency in Pfizer’s production.

Editors’ Note:  This case could be interesting to monitor if Plaintiffs attempt to offer evidence that there are discovery deficiencies that would not have occurred had TAR and/or predictive coding been employed.  Moreover, as indicated by Judge Peck in Hyles, it remains an open possibility that as TAR technology progresses, it will prove vastly superior to other methods of search and become the industry standard.  In such case, Courts may indeed require parties to employ TAR; but for the moment, at least in S.D.N.Y. and N.D. Ca., they will not.