“Epic of Dysfunctional Discovery” Requires Court-Mandated E-Discovery Protocol
Li v. Merck & Co. (N.D. Cal. Feb. 7, 2025)
Why This Alert Is Important
This case shows how courts are increasingly willing to take control of electronic discovery when parties fail to cooperate. It underscores the expectation that litigants use data-driven approaches—sampling, TAR, and clawback provisions—to keep discovery proportional and efficient.
Overview
Everlast Roofing, Inc. v. Wilson, (M.D. Pa. July 16, 2025), arises from commercial litigation involving allegations of breach of contract, tortious interference, unfair competition, and misappropriation of trade secrets. Plaintiff Everlast sought approximately $24 million in damages from defendants.
During discovery, the parties clashed over how to search electronically stored information (ESI), with both sides proposing different search terms. The defendants’ proposed search terms yielded more than 104,000 potentially responsive documents. Everlast’s proposed search terms, on the other hand, yielded only about 2,000 responsive documents. This gulf of over 100,000 records led to entrenched positions.
The court previously ordered the parties to conduct an in-person meet-and-confer to develop “a collaborative data-driven sample testing strategy” to determine which of the more than 100,000 records from defendants’ searches may also be responsive. That meeting did not resolve the dispute. Instead, the court noted that the parties returned with “two utterly irreconcilable competing narratives” and even disagreed on what had been discussed. Disagreements included a variety of topics, such as:
- Cost sharing
- Procedures for culling and refining samples
- Production format
- Counsel’s involvement in the review and discovery process
- Disposal of irrelevant documents
- Requirement for affidavits from counsel
Ruling Summary
- "Epic of Dysfunctional Discovery” The court’s ruling opened by lamenting: Today we write the next chapter in this litigation, a case which threatens to become an epic of dysfunctional discovery.” The court faulted both sides for escalating disputes rather than collaborating and referenced “the parties’ inability to cooperate and communicate” while the court “repeatedly endeavored to instill in the parties a mutual commitment to cooperatively [work] together to resolve discovery issues in a collaborative fashion.
- Failure to Resolve Disputes Results in Imposed Soluion On the merits of the dispute, the court ordered a structured ESI protocol: native format production with accompanying metadata, sampling procedures including a statistically valid random sample and technology-assisted review (TAR) calibrated to 95% accuracy, and cost-sharing of expenses. The court refused to limit the number of counsel involved and declined to mandate affidavits on the grounds that attorneys are “officers of the court, who have a legal and ethical duty of candor.
- Protocol Imposed… but with an “Escape Hatch” The protocol also included a clawback provision requiring the return or destruction of irrelevant documents. Notably, the ruling left an “escape hatch,” with the court concluding that “nothing in this order prevents the parties from now doing what we have ordered them to do: adopt a mutually agreeable ESI search process.”"
This opinion reminds litigants that it is the parties who know best which discovery processes may most efficiently locate relevant ESI and courts expect collaboration and cooperation in discovery. The court recognized that “counsel’s inability to agree upon sampling procedures truly places them ‘where angels fear to tread.’” The court, however, was compelled in this case to expend time and resources to “frame [the parties’] ESI search procedure” but nevertheless gave the parties one more opportunity to collaborate and adopt their own ESI protocol.Patricia Antezana, Counsel, Reed Smith
Data Privacy Tip
The courts don’t expect e-discovery professionals to be perfect, but they do expect collaboration and cooperation. Review Exterro’s guide to the FRCP if you’d like a refresher.
