Model Stipulation and Order re Use of Predictive Coding

The Coalition of Technology Resources for Lawyers is maintaining a model stipulation and order regarding the use of predictive coding. We are doing so in an effort to help provide counsel, clients, and the courts with ongoing direction on the use of predictive coding in the event that a court orders the parties to enter into a predictive coding use protocol or the parties decide to do so of their own accord.

In so doing, we disclaim that obtaining a stipulation and order is necessarily a best practice. For example, whether such a process will satisfy the mandate of Federal Rule of Civil Procedure 1 that “every action and proceeding” be resolved in “a just, speedy, and inexpensive” manner will depend upon the circumstances of each case, requiring the application of legal judgment.

The Coalition of Technology Resources for Lawyers

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ______
______,
Plaintiff,
vs.
______,
Defendant. / STIPULATION AND ORDER RE USE OF PREDICTIVE CODING IN DISCOVERY
Civil No. ______
Honorable ______
Magistrate ______

WHEREAS, the Plaintiff ______and the Defendant ______(collectively the “Parties” and each a “Party”) in the above captioned litigation (“Action”) agree to use predictive coding for the search, review, and production of documents in this Action and to enter a stipulation (“Stipulation”) to memorialize their agreement;

IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned, as attorneys of record for the Parties, as follows:

1. Scope of this Stipulation

(a) The procedures described in this Stipulation govern the use of predictive coding to assist in the production of documents by the Parties to this Action. In this Stipulation, predictive coding shall mean and refer to a process for selecting and ranking a collection of documents using a computerized system that incorporates the decisions that lawyers have made on a smaller set of documents and then applies those decisions to the remaining universe of documents.

(b) Nothing in this Stipulation shall prevent the Party responding to discovery (“Responding Party”) from using other search, review, or coding methodologies in addition to predictive coding to help identify documents that are responsive to the document requests from the Party seeking discovery (“Requesting Party”).

(c) Nothing in this Stipulation will be interpreted to require the disclosure of or waiver regarding information protected by the attorney-client privilege, the attorney work-product product doctrine, or any other applicable privilege. The production of documents pursuant to this Stipulation is respectively governed by the Confidentiality Stipulation and Protective Order entered by the Court on ______, and by the Order re Federal Rule of Evidence 502(d), entered by the Court on ______(collectively the “Orders”), which Orders are incorporated herein by reference. Consistent with the Order re Federal Rule of Evidence 502(d), the use of predictive coding pursuant to this Stipulation shall not be used to challenge the reasonableness of any Party’s efforts to identify and prevent the disclosure of information protected by any legal privilege or protection, including but not limited to the attorney-client privilege and the attorney work product doctrine.

(d) Any and all statements (whether written or oral) made by the Parties to this Stipulation or their representatives during their discussions regarding the development of the predictive coding search methodology are deemed confidential and shall not be admissible in evidence for any reason in this matter or any other matter that involves any of the Parties. This includes, but is not limited to, the selection of custodians, decisions on keywords, the sampling of documents, the training of the predictive coding search methodology, and the validation of the results of that process. The confidentiality afforded under this provision does not preclude admissibility of the information disclosed by the Parties or their representatives if:

(i) the information was also divulged or discovered outside the context of the Parties’ discussions relating to the matters set forth in this Stipulation; and/or

(ii) the statements are relevant on issues unrelated to the underlying merits of this Action, such as a motion for sanctions or for assessment and allocation of the costs and attorney fees incurred in locating and producing documents.

2. Sources of Potentially Responsive Documents

(a) The Parties shall meet and confer to determine the scope of documents to be selected for review by the Responding Party, which may include custodian, source, date, file type, and other criteria. The sources shall be selected based on the likelihood that they contain the most relevant documents (hereinafter the “First Phase Sources”). Discovery of documents from the First Phase Sources shall be limited to the following time period: ______through ______.

(b) The identification, collection, review, and production of relevant documents collected from the First Phase Sources shall be referred to as the “First Phase Discovery.”

(c) After the First Phase Discovery is completed, the Parties shall meet and confer to determine whether the Requesting Party seeks additional sources of relevant documents within the possession, custody, and control of the Responding Party.

3. Predictive Coding Search Methodology

(a) Determining the Prevalence of Responsive Information. The Responding Party shall first determine the prevalence of responsive information from the documents that comprise the First Phase Discovery. To ascertain the prevalence of responsive information, the Responding Party shall take a statistically valid sample of documents from the First Phase Discovery documents. That sample (hereinafter the “Sample Set”) will be developed based upon a reasonable technology and workflow, taking into account both the efficiency and accuracy of the process. The Parties agree that the Responding Party shall review the entire Sample Set to determine how many documents are responsive. Based on its review of the Sample Set, the Responding Party shall extrapolate an estimate of the number of responsive documents that are likely to be in the First Phase Discovery documents.

(b) Training the Predictive Coding Technology.

(i) After determining the expected prevalence of responsive documents, the Responding Party will identify a seed set of documents to train the predictive coding algorithm. The Responding Party is free to use any reasonable method it deems appropriate to identify this seed set and to train the predictive coding technology.

(ii) Subject to the conditions delineated herein, the Requesting Party shall be permitted to provide the Responding Party with certain documents and request that those documents be submitted into the predictive coding technology to help train the process. Any such documents that the Requesting Party wishes to submit for this purpose must be relevant to the claims or defenses in this Action and must have been previously produced by the Responding Party during discovery in this Action or provided to the Requesting Party by the Responding Party through lawful means and in the ordinary course of business. The Parties shall meet and confer to resolve any disputes regarding the quantity and quality of the documents the Requesting Party seeks to submit for this purpose.

(iii) Subject to the conditions delineated herein, the Responding Party shall not be required to (though it may): (a) identify for the Requesting Party the responsive documents that it used to train the predictive coding technology and the Requesting Party acknowledges that the process that the Responding Party’s counsel used to train the predictive coding technology is protected as opinion work product under Federal Rule of Civil Procedure 26(b)(3); or (b) disclose the non-responsive documents that it used to train the predictive coding technology.

(c) Validating the Results of the Search Process. The Responding Party shall take a statistically valid sample from all of the First Phase Sources excluded from its anticipated production of documents in order to ascertain whether responsive documents remain in this subset of information. The Responding Party shall review the documents from that sample to determine the nature of the information contained therein and shall produce what documents (if any) from that sample that it determines are relevant and proportional to the claims or defenses at issue in this Action. The Parties shall meet and confer to resolve any disputes regarding the Responding Party’s efforts to validate the results of the search process.

(d) Production of Documents. The Responding Party shall make a production that satisfies standards of reasonableness and proportionality. The Requesting Party reserves its right to seek the production of additional documents beyond that produced by the Responding Party. The Responding Party reserves its right to seek a protective order preventing the production of any further documents. The proportionality standards set forth in Federal Rule of Civil Procedure 26(b)(2)(C) shall govern the Court’s determination of any disputes regarding these issues.

4. General Provisions.

(a) The Parties hereby agree to meet and confer in good faith over any disputes that might arise with respect to the terms and conditions of this Stipulation or any other aspects relating to discovery. Should the Parties be unable to resolve their disputes on any issues stemming from the use of predictive coding set forth in this Stipulation, they shall submit those issues to the Court for resolution.

(b) Notwithstanding the provisions set forth in this Stipulation, the Parties respectively reserve their rights regarding the instant discovery process. This includes, but is not limited to, the Requesting Party’s right to object to the efforts of the Responding Party to search for, review, and produce information in response to the Requesting Party’s document requests; and the Responding Party’s right to withhold information pursuant to the objections it previously interposed in response to the Requesting Party’s document requests.

IT IS SO ORDERED

Date: ______

______

United States ______Judge

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