Notable Cases and Events in eDiscovery

This Sidley Update addresses the following recent developments and court decisions involving eDiscovery issues:

1. a decision from the U.S. District Court for the Northern District of California permitting a forensic examination of certain devices used to communicate over ephemeral messaging platforms where steps had been taken to ensure that the messages were not retained
   
   
2. an order from the U.S. District Court for the Western District of Kentucky holding that the defendant had waived its right to seek spoliation sanctions by waiting an unreasonable amount of time after learning of the alleged spoliation to seek relief
   
   
3. a ruling from the U.S. District Court for the Middle District of Florida finding that neither Rule 26 nor Rule 34 required a party to disclose the presuit loss of electronically stored information (ESI) that it did not intend to use in its defense
   
   
4. an opinion from the U.S. District Court for the District of Maryland ordering the defendant to reproduce ESI in its native format with metadata where the plaintiff had requested that format and the defendant had not objected
   
   
5. a decision from the U.S. District Court for the District of Columbia resolving disputes over the parties’ proposed protective order and ESI protocol, including the treatment of inadvertently produced privileged material, the production of hyperlinked documents, and search and validation methodologies.

1. In People Center, Inc. v. Deel, Inc., No. 25-cv-02576-CRB (LJC), 2026 WL 1628697 (N.D. Cal. June 5, 2026), U.S. Magistrate Judge Lisa J. Cisneros addressed whether a party had established sufficient grounds for a forensic examination of its opponents’ devices and accounts where the communications at issue were exchanged through ephemeral messaging services and were not retained.

In this lawsuit alleging a corporate espionage scheme against Defendant Deel, Inc. and several Deel employees, Plaintiff sought to inspect all devices and accounts used by three individual Defendants — Alex Bouaziz, Philippe Bouaziz, and Dan Westgarth — and their agents to communicate with or send payments to an alleged corporate spy, Keith O’Brien. Id. at *1. The individual Defendants were alleged to have been in direct communication with O’Brien for purposes of corporate spying and to have made related payments to him. Judge Cisneros had previously denied a broader request to inspect the devices and accounts of all Deel employees who communicated with O’Brien, but Plaintiff renewed its request supported by Deel’s amended discovery responses confirming that certain messaging services were used but messages were not retained.

Judge Cisneros began her analysis with Rule 34, which permits a party to request “to inspect, copy, test, or sample,” among other things, “data or data compilations ... stored in any medium.” She noted the Advisory Committee’s caution that Rule 34 “is not meant to create a routine right of direct access to a party’s electronic information system, although such access might be justified in some circumstances.” Judge Cisneros explained that a forensic inspection may be justified where the requesting party establishes that “serious questions exist both as to the reliability and the completeness of materials produced in response to ... discovery requests” and that privacy interests may bear on proportionality, “particularly in the context of a request to inspect personal electronic devices.”

Addressing the relevance of the ESI at issue, Judge Cisneros found that Plaintiff’s claims were “inextricably linked with the sharing of [ESI] across devices and accounts” and discovery reflected that O’Brien sent certain information to Alex Bouaziz. Id. at *2. Relying on the declaration of Plaintiff’s forensic expert, she observed that an examination could yield reconstructed message content, attachments of deleted files, recovered residual photos or videos, and data reflecting whether data was deleted or when and how individuals accessed and stored files.

Judge Cisneros next considered whether Plaintiff had established serious questions as to the reliability and completeness of the materials produced, a standard she found appropriate because forensic examination is “a particularly invasive form of discovery,” especially where the parties are commercial competitors. She concluded that discovery regarding the communications between O’Brien and the individual Defendants would be incomplete because O’Brien destroyed his mobile device and used ephemeral messaging services to communicate with the individual Defendants such that the communications at issue had been destroyed.

Judge Cisneros emphasized that the use of ephemeral messaging, “standing alone, does not indicate that one intends to commit or hide a wrong,” recognizing that there are legitimate privacy and security reasons for using such services. She found, however, that the record raised concern that steps were taken to hide information relevant to legal proceedings, including that Bouaziz and Westgarth left a three-way chat with O’Brien “and thereby destroyed the messages in the chat” and that Alex Bouaziz turned on “disappearing messages” in his one-on-one messaging conversation regarding the dispute with an investor.

Although the content of those messaging communications was not visible, and it therefore could not be confirmed that the messages addressed O’Brien’s activities or the related proceedings, Judge Cisneros found that enabling disappearing messages soon after receiving a preservation order raised suspicions that Alex Bouaziz may have been hiding communications relevant to the claims. By contrast, Judge Cisneros found that evidence regarding the conduct of Alex Bouaziz and Westgarth was “less extensive and detailed” and that Plaintiff had not raised sufficiently serious questions to justify an invasive forensic examination of its devices and accounts. Id. at *3.

Turning to privacy, Judge Cisneros noted that Plaintiff’s proposed inspection protocol included a screening process giving Defendants a “first look” at user-generated content collected through the examination and that Defendants had declined to explain why that process was insufficient to protect their private material. She also found their objections based on foreign privacy law “too conclusory” to establish that Alex Bouaziz’s devices and accounts merited protection from discovery.

Accordingly, Judge Cisneros granted Plaintiff’s request for a forensic examination of the devices and accounts that Alex Bouaziz identified in his interrogatory responses as having been used to communicate with O’Brien. She denied the requests as to Alex Bouaziz and Westgarth without prejudice to renewal if ongoing discovery revealed stronger support, explaining that “[a]n incremental approach” to authorizing additional forensic examinations was warranted where the litigants are commercial competitors.

2. In Dorn v. Dominique, No. 3:20-cv-00118-BJB-CHL, 2026 WL 2453725 (W.D. Ky. Aug. 21, 2026), U.S. Magistrate Judge Colin H. Lindsay addressed whether a party waived its right to seek spoliation sanctions under Rule 37(e) by waiting too long after learning of the conduct underlying the sanctions motions.

Plaintiff, the former business manager of rhythm-and-blues artist Bryson Tiller, alleged that Defendant interfered with Plaintiff’s management agreement with Tiller. Id. at *1. According to Plaintiff, Defendant told Tiller in a phone call — allegedly overheard by Plaintiff’s friend Ryan Cox — that Plaintiff had no music industry experience and was holding Tiller back. Plaintiff was fired on June 15, 2015, at a meeting with Tiller’s attorney that had been arranged through a group text including Plaintiff, Defendant, and the attorney. Id. at *1–2. Tiller later sued Plaintiff in Kentucky state court, where Plaintiff’s defamation counterclaims against Tiller were dismissed as a sanction for failing to comply with the court’s discovery orders. Plaintiff later filed this action in federal court. Id. at *2.

In November 2025, Defendant filed two motions for spoliation sanctions, alleging that Plaintiff deleted defamatory text messages sent by Tiller and the June 15, 2015, group text thread, destroyed a cellphone that Tiller had sent to Plaintiff in July 2015, and collaborated with Cox to delete their text messages. Id. at *2, *4. As a threshold matter, Judge Lindsay noted that a cellphone is physical evidence ordinarily subject to common-law spoliation standards, but he analyzed the phone under Rule 37(e) because what Defendant was “truly seeking sanctions for is the loss of ESI stored on a physical device,” and applying any other rule “would open the door for parties to circumvent the rigid requirements of Rule 37(e).” Id. at *3.

Plaintiff raised two procedural objections to Defendant’s sanctions motions: (1) that Defendant failed to participate in a premotion discovery conference required by the scheduling order and (2) that Defendant unreasonably delayed seeking relief. Judge Lindsay rejected the first argument, noting the absence of authority on whether a Rule 37(e) sanctions motion is a “discovery motion,” that the court had previously represented it would not treat Defendant’s motion as one, and that a conference aimed at compromise would serve little purpose once a party is already seeking sanctions.

But Judge Lindsay agreed with Plaintiff’s timeliness argument. Observing that he was unaware of any Sixth Circuit authority establishing a standard for unreasonable delay, he relied on persuasive authority from other circuits to note that the timeliness of a sanctions motion “depends on such factors as when the movant learned of the discovery violation, how long he waited before bringing it to the court’s attention, and whether discovery has been completed.” He further explained that spoliation motions should be filed “as soon as reasonably possible after discovery of the facts that underlie the motion” because they are fact-intensive (requiring the court to assess when the duty to preserve arose, compliance with that duty, culpability, relevance, and prejudice) and time-intensive (potentially requiring a hearing, additional discovery, or remedies that may end or severely alter the litigation). Accordingly, Judge Lindsay concluded that the least disruptive time to raise spoliation is during discovery, and raising it after discovery has closed or dispositive motions have been filed can disrupt the pretrial schedule. Because the waiver inquiry is fact-intensive, Judge Lindsay analyzed each category of allegedly lost information separately.

As to Tiller’s allegedly defamatory text messages and the June 15, 2015, text thread, Judge Lindsay assumed for procedural purposes that Defendant’s assertions supported an inference of spoliation and examined when Defendant learned of each supporting fact. Id. at *4. He concluded that Defendant decided to argue that Tiller had his own reasons for firing Plaintiff at some point between 2020 (when this case was filed) and February of 2025 (when Defendant filed a motion for summary judgment), and he separately concluded that Defendant learned “[a]s early as January of 2025” that Plaintiff had lost information relevant to that argument (but waited until November 2025 to move for sanctions). Judge Lindsay concluded that at best, Defendant waited “just over eight months” after learning of the facts supporting his motion, which was “too long of a delay to be reasonable,” and Defendant failed to account for the delay.

Judge Lindsay rejected Defendant’s argument that his motion was timely because no pretrial motion deadlines had been set and the court had represented that he could file “pursuant to whatever deadlines there are for pretrial motions.” Judge Lindsay explained that even compliance with court-set deadlines would not relieve a party of its duty to file a sanctions motion “as soon as reasonably possible after discovery of the facts that underlie the motion.”

Judge Lindsay reached the same conclusion as to Plaintiff’s communications with Cox. The record confirmed that Defendant knew of the issue at least as of a January 30, 2025, status conference, at which Defendant’s counsel told the court that one of Plaintiff’s witnesses had deleted information after being served with a deposition subpoena. Defendant’s resulting nine-month delay was “unreasonable.” Id. at *5.

Although he found that Defendant had waived relief, Judge Lindsay held in the alternative that the motions would fail on the merits. He found that Defendant had not shown that Tiller’s text messages or the June 15, 2015, thread were lost, given that the other participants in those communications (including, for the thread, Defendant himself and Tiller’s attorney) were also custodians and Defendant offered no evidence of efforts to obtain the messages from them and never moved to compel production of Tiller’s cellphone. Id. at *5–6. Although he found that Plaintiff’s text messages with Cox from before 2020 were lost and that Plaintiff’s duty to preserve arose in June 2015, he concluded that Plaintiff — an individual rather than a large organization — took reasonable preservation steps, including keyword searches using Defendant’s name. Id. at *6–9. Applying the “practical ability” test for control (and noting a split among district courts within the Sixth Circuit between that test and the “legal right” test), Judge Lindsay declined to impute Cox’s alleged spoliation to Plaintiff. Id. at *10–11. He further found that Defendant had not shown that the information could not be replaced through additional discovery, that Defendant suffered prejudice, or that Plaintiff acted with intent to deprive. Id. at *11–17.

Accordingly, Judge Lindsay denied both of Defendant’s motions for sanctions.

3. In Eat Well Investment Group, Inc. v. TRxADE Health, Inc., No. 8:25-cv-35-KKM-AEP, 2026 WL 2338555 (M.D. Fla. Aug. 13, 2026), U.S. District Judge Kathryn Kimball Mizelle addressed whether a defendant could be sanctioned for failing to disclose, in its initial disclosures or its responses to requests for production, the presuit loss of email data that it did not intend to use in its defense.

Plaintiff sued Defendants in January 2025 in connection with the June 2023 sale of a subsidiary. Some of the Defendants and other personnel at Defendant TRxADE Health, now known as Scienture Holdings, used email accounts housed in the trxade.com domain, which Plaintiff believed contained communications relevant to its claims. In February 2024, Scienture agreed to sell substantially all of the assets of Trxade, Inc., including the trxade.com domain and its associated email inboxes, which were transferred in early June 2024. Id. at *1.

Plaintiff moved for sanctions under Rule 37(e) based on Scienture’s alleged failure to preserve the emails. A magistrate judge denied sanctions under Rule 37(e) because Scienture’s duty to preserve had not been triggered before it sold and transferred the domain, a ruling neither party challenged. But the magistrate judge granted the motion under Rule 26. Scienture objected, arguing that the order implied an unstated duty under Rule 26 to disclose in initial disclosures the presuit loss of data that a party does not intend to use or a duty to disclose such a loss in response to a Rule 34 request for production.

Judge Mizelle disagreed with the magistrate judge that Scienture had an obligation to disclose the transfer of the trxade.com domain and associated emails throughout discovery, including in its initial disclosures and its responses to Plaintiff’s requests for production. Id. at *2. She explained that Rule 26(a)(1)(A)(ii) limits initial disclosures to documents, ESI, and tangible things in the disclosing party’s possession, custody, or control that it “may use to support its claims or defenses” and that Rule 26(a)(1)(A)(i) similarly limits the identification of individuals to those with information the disclosing party may use. Scienture represented that it never intended to use the trxade.com emails in its defense. Plaintiff pointed to Scienture’s engagement of a forensic IT specialist in August 2024 to attempt to recover the emails, an effort that was unsuccessful. Judge Mizelle found that Scienture’s belief in August 2024 that the domain might contain relevant documents had no bearing on whether Scienture intended to use that information, which no longer existed, when it made its initial disclosures after the action began in January 2025.

Judge Mizelle likewise concluded that Rule 34 did not obligate Scienture to disclose the transfer of the domain because Rule 34 requires production of items in the responding party’s possession, custody, or control and does not require the responding party to create new documents. She rejected Plaintiff’s reliance on an instruction accompanying its requests for production that directed Scienture to explain what had become of responsive documents that were no longer in its possession or no longer existed, explaining that the instruction improperly sought to require Scienture to create a new document. Judge Mizelle noted that a Rule 33 interrogatory would have been the proper vehicle for such a request.

Judge Mizelle further rejected Plaintiff’s contention that Scienture made any misrepresentations. Id. at *3. She explained that Scienture’s initial disclosures stated only that it had emails, correspondence, documents, and other ESI that it might use in its defense and that its responses to the requests for production stated only that it would search “its electronically-stored information” and produce responsive items. Neither statement represented that Scienture still possessed the trxade.com domain or would search it.

Accordingly, Judge Mizelle concluded that there was no basis under Rule 26 or Rule 34 to require Scienture to pay Plaintiff’s attorney’s fees in connection with the motion. She sustained Scienture’s objections and modified the magistrate judge’s order to deny Plaintiff’s request for attorney’s fees with prejudice.

4. In 1 Fitzwater Street, LLC v. Taylor, No. 1:25-cv-01328, 2026 WL 1830959 (D. Md. June 25, 2026), U.S. Magistrate Judge J. Mark Coulson addressed whether a party is obligated to provide ESI in native format with metadata as opposed to static PDFs.

Plaintiff brought a breach of contract claim against the City of Salisbury and its mayor arising from a lease agreement under which the city agreed to lease property to Plaintiff for development. Id. at *1. In discovery, Plaintiff served requests specifying that responsive ESI be produced “in its native form with all associated metadata.” The city instead produced static PDFs, and Plaintiff sought an order compelling production in the requested format.

Judge Coulson began his analysis with reference to the District of Maryland’s Principles for the Discovery of Electronically Stored Information in Civil Cases, which the parties had agreed to “generally adhere to ... as a guideline.” He explained that Principle 2.04 urges parties to try to agree on a production format in their initial ESI discussions and, where no agreement is reached, calls for “production in any reasonable format specified by the requesting party, consistent with principles of proportionality.” Id. at *2. He further noted that under the same principle, a party need not “accept production in a form that substantially degrades or jeopardizes the utility, integrity, and/or authenticity of ESI.” Judge Coulson found that PDF production, “by converting a native file to a static image and stripping the metadata, is just such a form.”

Judge Coulson clarified that static image production, whether by PDF or paper, may be the “most efficacious,” such as where the ESI is not voluminous, the parties are not using a review platform that requires native or near-native files, or the metadata is not germane, and that the court need not intervene where the parties agree on such a format. But he noted that the requesting party need not accept such a format absent agreement. In a footnote, Judge Coulson noted that there may be unusual cases in which the court orders static image or paper production over the requesting party’s preference, but only where the burden on the producing party is “far beyond any notions of proportionality” and there is no compelling need for metadata. Judge Coulson also observed that the Principles’ appendix identifies production formats that preserve metadata, including near-native “hybrid” production (e.g., TIFF images with load files containing associated metadata) and native production, as Plaintiff had requested.

The city argued that producing native files with metadata would require it to hire a third-party consultant charging a $7,500 retainer, $375 per hour, and additional storage costs and that this burden outweighed the relevance of the information. Judge Coulson rejected this argument, noting first that the city had raised no such objection before producing the PDFs. To the contrary, the parties had agreed to generally adhere to the principles, which advise that production should be in the format specified and that a requesting party need not accept static image production. He further observed that since the 2006 amendments to the Federal Rules of Civil Procedure, hiring a third-party vendor has become a routine practice for producing parties that lack the capability to produce ESI themselves.

Judge Coulson likewise rejected the city’s argument that PDFs were the “only practical, reasonable means” by which the documents could be extracted, reviewed, redacted, and Bates-labeled, explaining that the city had already contacted a vendor and that each of those tasks could easily be incorporated into a vendor-assisted review and production process. Id. at *3.

As to the city’s challenge to the need for metadata, Plaintiff had explained that it needed metadata to determine authorship, recipients, and custodians; confirm sent and received timestamps; reconstruct timelines; identify whether emails were forwarded, altered, or created contemporaneously; understand file paths, folder locations, and document families; and authenticate documents. Judge Coulson found that these reasons established relevance for production of metadata under Rule 26(b), particularly given the complicated facts underlying the contracts and resolutions at issue, and that the PDFs were less usable because they stripped Plaintiff of the ability to review the metadata. He concluded that the vendor’s expenses did not outweigh the relevance of the metadata and that any duplicative production was not unduly burdensome because the city had “unilaterally decided to ignore the requested production format in the first place.”

Judge Coulson further explained that Rule 34 independently required the city to produce ESI in the requested format because Rule 34(b)(1)(C) permits a requesting party to specify the form of production and Plaintiff had done so. He quoted the 2006 Advisory Committee Notes to Rule 34, which caution that a party that produces ESI in a form of its choice without identifying that form in advance runs a risk that the requesting party can show that the produced form is not reasonably usable and that the option to produce in a reasonably usable form does not permit a responding party to convert ESI to a form “that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation.”

Judge Coulson agreed with Plaintiff that an order compelling production is proper where the requesting party specifies native format and the producing party neither complies nor objects to the format. Id. at *4. Although the city asserted that it had objected and repeatedly explained to Plaintiff why the requested format was unduly burdensome and disproportionate, Judge Coulson found no such objection in the city’s discovery responses.

Accordingly, Judge Coulson granted Plaintiff’s request and ordered the city to produce the requested ESI in native format with metadata. Mindful that the work involved might not be as efficient as Plaintiff would like, he granted the city’s request for 45 days to complete the production.

5. In In re Class Action Settlement Administration Litigation, No. 25-179 (JDB), MDL No. 3162, 2026 WL 2042289 (D.D.C. July 10, 2026), U.S. District Judge John D. Bates resolved disputes over the parties’ proposed protective order and ESI protocol, including the treatment of inadvertently produced privileged material, the production of hyperlinked documents, and search and validation methodologies.

The parties in this multidistrict litigation submitted a proposed protective order and ESI protocol reflecting several areas of disagreement. Id. at *1. Judge Bates reviewed each issue to provide guidance on those disagreements and ordered the parties to submit revised proposals.

The parties’ first disagreement centered on whether Federal Rule of Evidence 502(b) or 502(d) should apply to privilege waiver. Plaintiffs proposed incorporating Rule 502(b), under which disclosure of privileged material does not operate as a waiver if the disclosure is inadvertent, the privilege holder took reasonable steps to prevent disclosure, and the holder promptly took reasonable steps to rectify the error. Defendants instead sought a Rule 502(d) order providing for no waiver regardless of inadvertence or care.

Judge Bates noted that a Rule 502(d) order is controlling and, according to the Advisory Committee, “may provide for return of documents without waiver irrespective of the care taken by the disclosing party.” Nevertheless, he agreed with Plaintiffs that Rule 502(b) should apply. Although Defendants pointed to model protective orders from at least two districts and the Sedona Conference providing that Rule 502(b) shall not apply, as well as Rule 502(d) orders adopted by several judges in the District of Columbia, Judge Bates observed that none of the judges in the cases Defendants cited appeared to have adopted a 502(d) order over an objection. He explained that parties are free to agree to “maximally protective” Rule 502(d) orders, but Plaintiffs had not consented here. He also expressed concern about the possibility of “belated clawbacks” after a party relied on long-disclosed information, for example, to support a motion or as a deposition exhibit.

Addressing how Rule 502(b) would apply, Judge Bates emphasized the Advisory Committee’s guidance that the reasonableness of a producing party’s efforts depends on considerations such as the number of documents to be reviewed, time constraints for production, the use of screening tools, and the implementation of an efficient records management system. Id. at *2. He further noted that Rule 502(b) does not require a postproduction review but does require the producing party “to follow up on any obvious indications that a protected communication or information has been produced inadvertently.” Judge Bates stated that he is likely to find prompt clawbacks reasonable so long as there is neither obvious reliance by the receiving party (e.g., in earlier filings or depositions) nor obvious indications that the disclosure was careless or intentional.

The parties’ second disagreement related to which party would be required to raise a dispute with the court regarding confidentiality designations. Plaintiffs argued that the producing party should move to sustain its designation because it bears the burden of persuasion, while Defendants argued that the challenging party should file the motion. Judge Bates agreed with Defendants. Although he recognized that overdesignation is a concern, he explained that “it makes logical sense” for the party that disagrees with a designation to bring the dispute to the court’s attention, absent agreement otherwise, and that a party facing significant overdesignation can consolidate its challenges in a single filing.

Turning to the ESI protocol, Judge Bates next addressed a dispute regarding “short message communications,” such as instant and text messages. Plaintiffs sought to establish now the parameters for producing any such communications and their metadata, while Defendants proposed to meet and confer on the form of production later if such communications became discoverable. Judge Bates agreed with Plaintiffs, finding that there appeared to be “limited burdens and some efficiencies” from establishing the production process at this early stage and that this approach generally comported with that of other multidistrict litigations.

Judge Bates next addressed a dispute regarding the treatment of hyperlinked documents. Id. at *3. Plaintiffs proposed a three-tier approach: (1) automatic production where there are five or fewer hyperlinked documents and automatic collection is feasible; (2) targeted requests where there are more than five documents, or a link to a location such as a folder, and automatic collection is feasible; and (3) a meet-and-confer process where automatic collection is not feasible for a given platform and the requesting party has identified a specific document containing a hyperlink. Defendants proposed that a producing party need not produce hyperlinked files merely because a link appears in another document, that there is no duty to manually locate or collect hyperlinked documents where automatic collection is not technically feasible, and that the parties meet and confer only after the receiving party identifies hyperlinked documents to be produced.

Judge Bates agreed with Plaintiffs that a procedure for producing hyperlinked documents should be set out in the ESI protocol rather than left to subsequent meet-and-confer processes. Weighing proportionality considerations, he recognized that hyperlinks may lead to folders containing numerous irrelevant files and therefore are not necessarily akin to traditional attachments but also that the increasingly widespread use of document-sharing platforms meant that many relevant documents are shared by hyperlink rather than attachment. Judge Bates found that Plaintiffs’ proposal better balanced these considerations by tailoring the burden to the characteristics of the hyperlink: Where a hyperlink looks like an attachment (few linked documents and feasible automatic collection), production is automatic, and where it does not, a more targeted or collaborative process applies. He explained that the parent-child relationship should follow the same tailoring, such that the family relationship need be preserved only where the platform permits automatic collection and there are few linked documents. He also found that Plaintiffs’ approach was consistent with the Sedona Conference’s recommendation that parties not reflexively treat hyperlinked documents like attachments.

Judge Bates next addressed various disputes about document collection and production parameters. Id. at *4. He agreed with Plaintiffs’ proposal that the producing party disclose its custodians and data sources within 14 days of the Rule 26(f) conference, as opposed to Defendants’ proposal for disclosure within 30 days of serving objections and responses, because Rule 26(f) requires the parties to develop a discovery plan addressing ESI and the parties therefore should already be informed about their ESI custodians and sources ahead of that conference.

As to search methodologies, Defendants proposed disclosing their general search methodology along with reasonable information to facilitate meet-and-confer discussions, whereas Plaintiffs proposed an iterative process of search-term development with hit reports and a validation process, permitting technology-assisted review (TAR) only if a TAR protocol was first put in place. Judge Bates sided with plaintiffs, finding no disproportionality in their approach. Id. at *5.

Finally, as to validation methodologies, Plaintiffs sought to establish a validation framework in advance, including random sampling, while Defendants argued that Rule 26(g) does not require any specific validation methodology or its disclosure. Judge Bates again agreed with Plaintiffs, explaining that courts routinely require some form of validation so that the receiving party can be confident that production is substantially complete, and that otherwise “discovery would be a black box.” Accordingly, he required the parties to establish in advance a validation process to assess discovery completion, including random sampling or substantially equivalent quality control measures.

Judge Bates left to the parties the task of revising the proposed protective order and ESI protocol consistent with his opinion, reminded them of their duty to meet and confer in good faith, and ordered them to submit revised proposals within 30 days.