Blog on Search Terms and Predictive Coding

Should Carl Little, Jr., Have Won His Appeal Challenging Denial of a Spoliation Instruction?
December 26, 2022
How to Avoid Contentious “Hit Report” Problems
January 4, 2023

Josh Gilliland’s excellent blog To Use Search Terms Before or After Predictive Coding – Bow Tie Law (Dec. 28, 2022), addresses “a simple question with a complex answer: Should search terms be used before or after predictive coding? That question was the subject of dueling motions in In re Allergan Biocell Textured Breast Implant Prods. Liab. Litig. (D.N.J. Oct. 25, 2022, No. MDL No. 2921) 2022 U.S.Dist.LEXIS 200790, at *65-66.).”

The issue was whether predictive coding must be applied to the entire dataset or whether keywords could be used for pre-culling.  The dataset was huge – 10 terabytes equaling more than 3.5 million pages.  As part of its analysis, the court held the parties to their agreement: “Because Plaintiffs did not bargain for this at the outset, over a year ago, it is inappropriate to force them to accept it now.” [emphasis added].

On the substantive issue, Josh correctly notes: “The question of whether to use predictive coding before or after search terms is a tricky one.” He properly cites the court’s conclusion that courts have not “settled on” the workflow issue.   He correctly notes:

The wildcards in this case are not knowing the type of data at issue, the proposed search terms, the type of predictive coding being used, and the requests for production at issue. It is radically difficult to say what is the “best” workflow for identifying responsive records. Given these wildcards, the Court made the best call with the information available.

Procedurally, I wonder if the court was correct to hold the parties to their agreement.  It has long been the rule that litigants should “be careful what you agree to.” Sanctions Denied, But Be Careful What You Agree To (Part I).  However:

“While courts should not casually discard agreements between the parties, nor should they abrogate their duty to balance both burden and the likelihood of uncovering relevant evidence merely because a party made an improvident agreement.”

Be Careful What You Agree To, But the Duty to Cooperate May Provide an Escape Hatch (Part II) quoting I-Med Pharma, Inc. v. Biomatrix, Inc., 2011 WL 6140658 (D.N.J. Dec. 9, 2011)(unpublished).  It is “clearly correct… that an agreement to search for specified terms is a binding agreement.”  Id.  However, concepts of cooperation and proportionality should not be displaced.  Id.  Sometimes, an escape hatch is warranted.  Id.

Josh’s blog is correct on the substance, and the decision to hold the parties to their agreement was only part of the analysis.  However, discovery agreements and decisions are interlocutory and, where cause is shown, flexibility may be in order on procedural issues.

For more on predictive coding, see Jason R. Baron, Ralph C. Losey, and Michael D. Berman, eds., Perspectives on Predictive Coding and Other Advanced Search Methods for the Legal Practitioner ( (2016).