When it comes to validating your production efforts, sampling your null set may be necessary to prove that a reasonable inquiry was taken by the producing party.
In this breach of contract case involving pricing for prescription medication, the parties dispute an element of their e-discovery production protocol, namely what happens after production if one party feels “certain categories of requested documents exist that were not included in production.”
The plaintiffs proposed that a random sample be taken of the null set (i.e., the “set of documents that are not returned as responsive by a search process, or that are identified as not relevant by a review process”), while the defendants believed that the parties should “meet and confer to discuss whether additional terms are necessary.”
Leading up to this dispute, the parties agreed to use keyword searching, but if one party decides to use predictive coding, “the producing party will notify the opposing party to discuss the protocol for that type of review.”
Download the PDF version of City of Rockford v. Mallinckrodt ARD Inc. case law alert here.
Although sampling the null set is not required, it is one method to show that the search terms were valid when a party is looking for additional assurances that the process yielded reasonable results.