Philip Favro, Driven: New TAR Case Spotlights Perils with Broad ESI Protocols

Extract from Philip Favro’s article “New TAR Case Spotlights Perils with Broad ESI Protocols”

A new case has brought into the spotlight the risks responding parties face when entering into ESI protocols with detailed disclosure obligations regarding technology-assisted review (TAR). In In re Valsartan, Losartan, and Irbesartan Products Liability Litigation (D.N.J. Dec. 2, 2020), the court refused to approve a responding party’s proposed TAR process and insisted that the design and execution of a TAR workflow required “an unprecedented degree of transparency” between the responding and requesting parties.

Valsartan’s holding flows from the stipulated ESI protocol in which the parties agreed to “cooperate” and “meet and confer” regarding “the disclosure and formulation” of TAR. Indeed, the Valsartan holding is specifically premised on the ESI protocol’s expansive transparency and cooperation provisions, to which a responding party agreed and then failed to observe. Given Valsartan’s holding and rationale, responding parties may be wary of entering into ESI protocols with such broad disclosure and cooperation obligations regarding TAR.

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