Garrie, Daniel, Special Master

JAMS Ref. No: 1200058674

BACKGROUND

1. On August 18, 2021, Special Master Daniel Garrie (“Special Master Garrie”) and Judge Gail Andler declared impasse on the issue of whether Facebook should be compelled to use Technology Assisted Review (“TAR”) in their review and production.

2. Pursuant to the Protocol for Resolving Discovery Disputes, Plaintiffs submitted their opening brief regarding the use of TAR on August 30, 2021. Plaintiffs argue that requiring Facebook to implement TAR is within the Special Master’s discretion and Facebook should be compelled to use TAR because (a) TAR will increase the pace of discovery, which Plaintiffs assert is currently insufficient to meet the needs of the case; and (b) implementing a TAR protocol will increase cooperation and transparency in discovery, which Plaintiffs assert have been insufficient thus far as “Facebook has continued to assert an unduly narrow view of relevance”. See Plaintiffs’ Brief Regarding the Use of TAR.

3. Pursuant to the Protocol for Resolving Discovery Disputes, Facebook submitted their Opposition to Motion to Compel TAR on September 9, 2021. Facebook argues that (a) the ESI Protocol forecloses Plaintiffs’ request that the Special Master compel TAR; (b) the case Law unanimously rejects Plaintiffs’ request for an order compelling TAR; (c) Plaintiffs offer no justification for an order compelling Facebook to use TAR; and (d) compelling Facebook to use TAR at this stage would delay discovery. See Facebook’s Opposition to Motion to Compel TAR.

ORDER

4. Special Master Garrie finds that additional information pertaining to Facebook’s review is necessary to rule on the TAR related issues. Within 6 business days, Facebook is to provide the items below to Special Master Garrie.

i. Facebook is to make available a technical resource (witness) knowledgeable in the analytics, review tools, and methodologies used in Facebook’s production to guide Special Master Garrie through an in-camera review of samples of the documents reviewed and to explain the review process.
ii. Facebook is to provide Special Master Garrie a sample of 500 documents from the unreviewed documents claimed to have a 3% responsiveness rate. See Facebook’s Opposition to Motion to Compel TAR, at 14.
iii. Facebook is to provide a list of the repositories that are included in the scope of their review, designating as follows: (a) which repositories have been collected and which remain to be collected, if any; (b) which repositories have been searched; (c) which repositories have been reviewed; (d) which repositories are custodial sources and which are non-custodial sources.