Any judge who begins an opinion about ediscovery with a quote from Donald Rumsfeld (of all people!), and then tosses in a reference to Marge from The Simpsons while quieting lawyers’ fears of technology by noting that ediscovery is not scary, but clowns definitely are, is deserving of notice. But a judge who does all of that while simultaneously issuing a succinct opinion that cogently summarizes the state of the law on ediscovery as of 2018, and does so while balancing the pros and cons of different search technologies against the renewed call for proportionality in a “bet-the-company” case is deserving of hosannas from the ediscovery bar. Ladies and gentleman, I commend to you Magistrate Judge Iain Johnston and his opinion in City of Rockford v. Mallinckrodt ARD Inc., 2018 WL 3766673 (N.D. Ill. Aug. 7, 2018).
The opinion addresses discovery in two cases, consolidated for discovery purposes, in which plaintiffs allege that defendant Mallinckrodt engaged in racketeering and violated the antitrust laws when it suddenly increased by tens of thousands of dollars the price of a drug that treats a rare infant seizure disorder. Whether any of that is true is an issue for another day. What Judge Johnston was asked to decide is whether as part of the ediscovery protocol to be followed in the cases, Mallinckrodt should be required to conduct a statistically meaningful random sample review of documents that did not have any key word search term “hits” to determine if any of those documents actually were responsive to plaintiffs’ document requests and, if so, to produce those documents and then engage in a further meet and confer process to determine if modification to the search terms used is warranted. [continued]