`ANTITRUST LITIGATION
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`This Document Relates To:
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`ALL CASES
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`MDL Docket No. 2656
`Misc. No. 15-1404 (CKK)
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`Case 1:15-mc-01404-CKK Document 287 Filed 09/13/18 Page 1 of 15
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`MEMORANDUM OPINION
`(September 13, 2018)
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`Presently before the Court is Plaintiffs’ [270] Notice of Motion and Motion for an
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`Extension of Fact Discovery Deadlines pursuant to Federal Rule of Civil Procedure 16(b)(4).
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`Defendants Delta Air Lines and United Airlines, Inc. oppose Plaintiffs’ Motion, and assert that the
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`discovery schedule set forth in this Court’s February 14, 2018 Amended Scheduling Order
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`Regarding Discovery and Class Certification, ECF No. 207, should not be altered. The Court
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`acknowledges that it has set a strict schedule for discovery and exhorted the parties to comply with
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`the deadlines therein; however, upon careful consideration of the pleadings,1 the relevant legal
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`authorities, and the entire record, the Court finds warranted an extension of the deadlines in the
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`Amended Scheduling Order. Accordingly, the Court GRANTS Plaintiffs’ [270] Motion for an
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`Extension of Fact Discovery Deadlines, for the reasons described in more detail herein.
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`1 Plaintiffs’ Notice of Motion and Motion for an Extension of Fact Discovery Deadlines
`(“Pls.’ Mot.”), ECF No. 270; Plaintiffs’ Memorandum of Law in support of its Motion (“Pls.’
`Mem.”), ECF No. 270-1; Defendant Delta Air Lines, Inc.’s Opposition to Plaintiffs’ Motion
`(“Delta Opp’n”), ECF No. 274; Defendant United Airlines, Inc.’s Opposition to Plaintiffs’ Motion
`(“United Opp’n”), ECF No. 276; and Plaintiffs’ Reply Memorandum of Law in support of
`Plaintiffs’ Motion (“Pls.’ Reply”), ECF No. 279. The motion is fully briefed and ripe for
`adjudication.
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`1
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`Case 1:15-mc-01404-CKK Document 287 Filed 09/13/18 Page 2 of 15
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`I. BACKGROUND
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`This case involves a multidistrict class action litigation brought by Plaintiffs, who are
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`purchasers of air passenger transportation for domestic travel, against [remaining] Defendants,
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`Delta Air Lines, Inc. (“Delta”) and United Airlines, Inc. (“United”), two of the four largest
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`commercial air passenger carriers in the United States, based on allegations that Defendant airlines
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`willingly conspired to engage in unlawful restraint of trade. See generally Corrected Consolidated
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`Amended Class Action Complaint, ECF 184.2
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`On January 30, 2017, this Court set a [152] Scheduling Order Regarding Discovery and
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`Briefing on Motion for Class Certification. On February 22, 2017, the Court entered a Minute
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`Order noting that there was a joint request by the parties to extend a discovery deadline set forth
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`in this Court’s [152] Scheduling Order, and the Court granted this request. See February 22, 2017
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`Minute Order. On February 5, 2018, the parties filed a [204] Joint Status Report setting out a
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`proposed amended schedule for discovery. The Court held a status conference on February 12,
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`2018, to discuss scheduling issues, and on February 13, 2018, the Court issued an [207] Amended
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`Scheduling Order Regarding Discovery and Class Certification, whereby the close of fact
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`discovery is set for January 31, 2019, and a class certification motion is to be filed by February 7,
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`2019.3 On April 26, 2018, Plaintiffs filed an [231] Unopposed Motion for Extension of Time to
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`Complete Discovery, solely regarding third party discovery, and this request was granted by the
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`Court.
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`2 Defendants Southwest Airlines Co. and American Airlines, Inc. have entered into
`settlement agreements with the Plaintiffs.
`3 The Court held several status conferences in this case where discovery and scheduling
`issues were discussed. (May 11, 2017; September 19, 2017; November 16, 2017; February 12,
`2018; June 6, 2018). Prior to each status conference, the parties filed a joint status report.
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`Case 1:15-mc-01404-CKK Document 287 Filed 09/13/18 Page 3 of 15
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`On August 24, 2018, Plaintiffs filed the instant Motion for Extension of Time to Complete
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`Discovery, ECF No. 270, wherein Plaintiffs request that this Court “extend the fact discovery
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`deadline and certain other interim discovery deadlines, as well as the deadlines for the submission
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`and briefing of Plaintiffs’ motion for class certification, the deadline for depositions, the deadline
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`for serving requests for admissions, and the deadlines for motions to compel by six months.” Pls.’
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`Mem. at 5.4 Plaintiffs assert that this request for an extension of discovery is predicated on a
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`recent “issue with United’s “core” document production,” which constitutes good cause to extend
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`the discovery deadlines. Pls.’ Mem. at 5-6. More specifically, Plaintiffs assert that United
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`produced more than 3.5 million [core] documents to the Plaintiffs, but “due to United’s technology
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`assisted review process (“TAR”), only approximately 17%, or 600,000, of the documents produced
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`are responsive to Plaintiffs’ requests,” and Plaintiffs must sort through them to determine which
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`ones are responsive, which requires additional time. Id.
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`Defendants Delta and United oppose Plaintiffs’ request for an extension, but for the reasons
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`set forth herein, this Court shall GRANT Plaintiffs’ Motion for an Extension of Fact Discovery
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`Deadlines, with the proviso that no further extensions of discovery will be considered by this
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`Court.
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`II. LEGAL STANDARD
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`Pursuant to Federal Rule of Civil Procedure 16(b)(4): “A schedule may be modified only
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`for good cause and with the judge’s consent.” Similarly, Local Civil Rule 16.4 provides that the
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`Court “may modify the scheduling order at any time upon a showing of good cause.” In evaluating
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`4Page references are to the page numbers assigned by the electronic case filing (ECF)
`system.
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`3
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`Case 1:15-mc-01404-CKK Document 287 Filed 09/13/18 Page 4 of 15
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`good cause, the Court considers the following factors:
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`(1) whether trial is imminent; (2) whether the request is opposed; (3) whether the non-
`moving party would be prejudiced; (4) whether the moving party was diligent in
`obtaining discovery within the guidelines established by the court; (5) the
`foreseeability of the need for additional discovery in light of the time allotted by the
`district court; and (6) the likelihood that discovery will lead to relevant evidence.
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`Rae v. Children’s Nat’l Med Ctr., Civil Action No. 15-736, 2017 WL 1750255, at *2-3 (D.D.C.
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`May 4, 2017) (citing Childers v. Slater, 197 F.R.D. 185, 188 (D.D.C. 2000)). “The primary
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`consideration in the “good cause” analysis is whether the party seeking the amendment was
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`diligent in obtaining the discovery sought during the discovery period [and] [a]n additional, yet
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`secondary, consideration is the existence or degree of prejudice to the party opposing the
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`modification.” See Equal Rights Ctr. v. Post Properties, Inc., No. 06-cv-1991, 2008 WL
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`11391642, at *1-2 (D.D.C. May 27, 2008) (internal quotation marks and citations omitted).
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`These factors relevant to showing “good cause” will be analyzed by the Court in the
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`discussion set forth below, beginning with Plaintiffs’ diligence and whether there is any prejudice
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`to the Defendants.
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`III. DISCUSSION
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`A. Plaintiffs’ Diligence
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`Plaintiffs contend that a showing of diligence involves three factors — (1) whether the
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`moving party diligently assisted the Court in developing a workable scheduling order; (2) that
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`despite the diligence, the moving party cannot comply with the order due to unforeseen or
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`unanticipated matters; and (3) that the party diligently sought an amendment of the schedule once
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`it became apparent that it could not comply without some modification of the schedule. See Dag
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`Enters., Inc. v. Exxon Mobil Corp., 226 F.R.D. 95, 106 (D.D.C. 2005) (Kollar-Kotelly, J.)
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`4
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`Case 1:15-mc-01404-CKK Document 287 Filed 09/13/18 Page 5 of 15
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`First, there is no dispute that the parties diligently assisted the Court in developing
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`workable scheduling orders through their preparation of Joint Status Reports prior to the status
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`conferences in which discovery issues and scheduling were discussed, and in their meetings with
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`the Special Master, who is handling discovery matters in this case. The parties were able to agree
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`upon various deadlines and have been working diligently to meet those deadlines, particularly
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`concerning the February 14, 2018 Amended Scheduling Order. Accordingly, the first factor
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`necessary for a demonstration of Plaintiffs’ diligence has been met.
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`Second, Plaintiffs assert that, subsequent to the commencement of fact discovery in late
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`January 2017, they served their core document requests in a timely manner and, as reflected in the
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`Status Reports filed by the parties, they negotiated Defendants’ objections to their requests, the
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`scope of production, search methodologies, and protocols. Pls.’ Mem. at 15 (citing the Kenney
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`Declaration and various Joint Status Reports). Completion of core document production was set
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`for April 30, 2018, and by that date, Defendants American, United and Delta produced
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`approximately 6 million documents to the Plaintiffs.5 Despite having staffed their discovery
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`review with 70 attorneys, who began their review “as soon as the [documents] could be processed
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`into Plaintiff’s review platform following production on April 30,” Plaintiffs indicate that they will
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`be unable to complete the review in time to use these documents for depositions and other
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`purposes, if certain scheduling deadlines are not extended. Pls.’ Mem. at 10. Accordingly,
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`Plaintiffs seek an extension of certain scheduling order deadlines so that they are afforded “a
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`5 Approximately 5.1 million documents were produced on April 30, 2018. Kenney Decl.
`¶ 16. Jeannine M. Kenney is an attorney admitted to practice law in the District of Columbia and
`Pennsylvania, and a partner at Hausfeld, LLP, one of the Court-appointed Co-Lead Counsel for
`Plaintiffs in this case. Kenney Decl. ¶ 1.
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`5
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`Case 1:15-mc-01404-CKK Document 287 Filed 09/13/18 Page 6 of 15
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`meaningful opportunity to review the discovery they have diligently pursued and for which they
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`secured production.” Pls. Mem. at 15.
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`Defendants United and Delta question whether Plaintiffs have staffed the document review
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`with 70 attorneys and suggest that Plaintiffs identify the 70 attorneys and how many hours they
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`are working and/or that this Court review Plaintiffs’ counsel’s monthly time sheets to verify this
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`statement. See United Opp’n at 20; Delta Opp’n at 4. Defendants do not provide any support for
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`their request, and the Court finds it unnecessary to require Plaintiffs to produce a list of attorneys
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`working on this matter, or to engage in any additional review of monthly time reports.6 The Court
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`assumes that counsel for Plaintiffs, as an officer of the court, has represented accurately the way
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`in which this case is being staffed. Delta then questions why it would take Plaintiffs so long to
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`comb through 6 million documents and tries to extrapolate how long it would take to review the
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`entire set of documents based on a review of 3 documents per minute when working with a
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`hypothetical set of documents. See Delta Opp’n at 4-5. Plaintiffs dispute Delta’s hypothetical
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`analysis as “preposterous.” Pls.’ Reply at 18; see Grossman [Second] Decl., ECF No. 279-1, ¶¶
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`3-5 (discussing why the Delta analysis is unreasonable).7 United notes that it engaged “over 180
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`temporary contract attorneys to accomplish its document production and privilege log process
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`within the deadlines” set by Court and accordingly, Plaintiffs should be expected to engage in the
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`same expenditure of resources. United Opp’n at 20. The Court finds that these contentions by
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`6 Plaintiffs provide this Court with monthly cumulative time and expense reports, in
`accordance with the Court’s Order of February 29, 2016. These reports do not provide the
`granular detail that Defendants are suggesting.
`7 Maura R. Grossman is a Research Professor in the David R. Cheriton School of
`Computer Science at the University of Waterloo, in Ontario, Canada, and she is also an
`eDiscovery attorney and consultant in New York. Grossman [First] Decl. ¶ 1.
`6
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`Delta and United do not address the issue at hand — whether Plaintiffs had to deal with unforeseen
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`or unanticipated matters, which justify Plaintiffs’ request for additional time.
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`Plaintiffs contend that they “could not have foreseen United’s voluminous document
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`production made up [of] predominantly non-responsive documents resulting from its deficient
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`TAR process when they jointly proposed an extension of the fact discovery deadline in February
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`2018.” Pls.’ Mem. at 15-16.8 Plaintiffs explain that United’s production was based on the results
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`of the TAR process and to ensure accuracy and completeness, the parties entered into an agreement
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`regarding a validation Protocol. See Pls.’ Mot, Kenney Decl. Ex. 1 [Plaintiffs’ (Initial) Proposals
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`for United’s Pre-TAR Search Term Culling & TAR Validation Process], Ex. 2 [Plaintiffs’ Revised
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`Proposals for United’s Pre-TAR Search Term Culling & TAR Validation Process], Exs. 3-4 [e-
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`mail exchange between counsel regarding the TAR process and the Protocol].9 The Protocol (also
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`referred to as the March 26 TAR Agreement) provided that the parties agree that:
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`United will not “pre-set” its target value for estimated recall (i.e., the percent of responsive
`documents to be produced from the TAR corpus based on the control set metrics) at 75%.
`Instead, United will set a minimum estimated recall rate of 75% but will endeavor to
`achieve a higher estimated recall rate if that rate may be obtained with a reasonable level
`of precision through reasonable additional training effort, taking into account the concept
`of proportionality and the deadline for substantial completion of document production.
`Plaintiffs and United will meet and confer to attempt to reach agreement regarding an
`acceptable recall rate after TAR training is well advanced and United reasonably believes
`further training to obtain a higher recall is not practicable.
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`Ex. 2 ¶ D. Recall is a “measure of completeness, reflected by the proportion (i.e., percent) of
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`8 Plaintiffs anticipated the production of about 3 million documents and believed a nine-
`month period to review documents would be sufficient. Pls.’ Mem. at 16. United questions
`Plaintiffs’ method of estimating the number of documents that would have been produced.
`United Opp’n at 19.
`9 Plaintiffs engage in a more detailed discussion of the negotiation history and TAR
`Protocol in their Reply.
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`7
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`Case 1:15-mc-01404-CKK Document 287 Filed 09/13/18 Page 8 of 15
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`responsive documents found through a search process out of all possible responsive documents in
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`the collection. See Grossman [First] Decl., ECF No. 270-3, ¶ 10 (emphasis omitted). Precision is
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`a “measure of accuracy, or the proportion (i.e., percent) of the documents identified by a search or
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`review process that are actually responsive.” Id. Pursuant to the Protocol, United was to engage
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`in validation testing by reviewing a statistically representative sample of documents to test the
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`accuracy of TAR as to the responsiveness of the documents, and United would report to Plaintiffs
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`the results of this review, which would permit Plaintiffs to calculate the rate of precision and the
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`rate of recall. Ex. 2 ¶ E. More specifically, United would provide Plaintiffs with, inter alia, the
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`total number of documents coded by the human reviewer as: (1) Responsive in the validation
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`sample but predicted as Not Responsive by TAR (“false negatives”); (2) Responsive in the
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`validation sample and correctly predicted as Responsive by TAR (“true positives”); and (3) Not
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`Responsive in the validation sample but incorrectly predicted as Responsive by TAR (“false
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`positives”). See id.
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`On April 27, 2018, one business day before the April 30, 2018 production deadline, United
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`provided the TAR validation metrics to Plaintiffs and reported the precision and recall results from
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`the “control set,” where the estimated recall was 85% and the estimated precision was 58%, and
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`United provided the validation sampling metrics required by the Protocol. Pls.’ Mem. at 9. When
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`Plaintiffs analyzed the metrics, they found that the statistics from the validation sample indicated
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`that the TAR process resulted in a recall of 97.4% and precision of 16.7%. See Kenney Decl.,
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`ECF No. 270-4, ¶ 20. Beginning in May and continuing through late July, Plaintiffs and United
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`engaged in a series of back and forth exchanges regarding the metrics and the reasons why the
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`results between the control set and final production varied, culminating in United indicating that
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`Case 1:15-mc-01404-CKK Document 287 Filed 09/13/18 Page 9 of 15
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`“it had incorrectly reported the control set metrics, and that the correct control set metrics were, in
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`fact, consistent with the validation sample results.” Pls.’ Mem. at 9; see Ex 5 [e-mail exchange
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`between counsel post-dating the production] at 2. According to Plaintiffs, that is when they “fully
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`understood“ that the core production of 3.5 million documents contained only 600,000 documents
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`that were responsive. Pls.’ Mem. at 10.
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`Plaintiffs explain that they consulted with United, and the parties considered various
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`options to “alleviate the problem,” but the answer seems to be that unless United starts the process
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`over, Plaintiffs must review all the documents.10 Pls.’ Mem. at 6; Grossman [First] Decl. ¶ 18.
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`One of these options was for Plaintiffs to use their own TAR methodology, which they use to
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`prioritize documents, but Plaintiffs determined that, “even with further training, the tool is unlikely
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`to weed out the millions of non-responsive documents from United’s production.” Pls.’ Mem. at
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`11; Kenney Decl. ¶ 25. Because Plaintiffs are unable to segregate the large number of non-
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`responsive documents from the responsive documents within the time remaining before the
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`discovery deadline, so that they can use the responsive documents to prepare for depositions,
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`motions practice, and trial, they have asked this Court for an extension of the deadline.11
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`10 In their briefing, the Plaintiffs and United both reference a potential overlay from
`United that would identify the documents that would have been produced at a higher level of
`precision, but there is disagreement as to the effectiveness of such overlay, and at this point, it is
`too late for any overlay to be a factor considered regarding this Motion.
`11 This Court does not find it necessary to address specifically Plaintiffs’ allegation that
`Defendant United “dumped” documents on them thereby shifting the pre-production burden, or
`Defendant’s counter-allegation that, in October of 2017, Plaintiffs indicated that they did not
`want Defendants to manually review the documents to cull out non-responsive ones. These
`allegations are tangential to the issue of whether there were unforeseen or unanticipated matters,
`i.e., a greater than anticipated number of non-responsive documents arising from the TAR
`process and errors associated therewith, which impede Plaintiffs from meeting the current
`deadlines.
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`9
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`Delta does not challenge the proposition that Plaintiffs had to address unforeseen or
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`unanticipated matters; instead, Delta questions why Plaintiffs were unable to use their own TAR
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`process to segregate documents, but this is explained to the Court’s satisfaction in the Plaintiffs’
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`pleadings and attachments thereto. United seems to shift the blame onto Plaintiffs regarding their
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`core production, which encompasses millions of non-responsive documents, under the theory that
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`Plaintiffs always stressed their desire for a high TAR recall without focusing on precision. See
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`United Opp’n at 10 (“Plaintiffs got what they bargained for.”); Sepulveda Decl. ¶¶ 18-19
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`(indicating that Plaintiffs approved of a proposed 85% recall without asking about the
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`corresponding precision estimate because they were concerned with recall more than precision);
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`Lewis Decl. ¶ 19 (defining recall and precision).12 United’s assertion is contradicted however by
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`the language of the Protocol, which notes that “a reasonable level of precision” was a concern. See
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`Pls.’ Ex. 2 ¶ D.
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`In its Opposition, United spends a good deal of time on its argument that its precision level
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`and the resulting document production are reasonable, but that argument is irrelevant to the issue
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`at hand, which is whether United’s core production of 3.5 million documents — containing
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`numerous nonresponsive documents — was unanticipated by Plaintiffs, considering the
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`circumstances leading up to that production. Having reviewed the Protocol and the
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`correspondence between counsel, and the declarations attached to the pleadings, the Court finds
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`that Plaintiffs have demonstrated that despite exercising diligence, there are unforeseen or
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`12 Brendan Selpulveda is an attorney admitted to practice law in the District of Columbia
`and Virginia, and an associate with the law firm of Crowell & Moring, which represents
`Defendant United Airlines, Inc. Selpuveda Decl. ¶ 1. David D. Lewis is the Chief Data Scientist
`for Brainspace, a business of Cyxtera Technologies. Lewis Decl. ¶ 1.
`10
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`unanticipated matters which thwart their compliance with the deadlines previously set.
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`Accordingly, the second factor for a demonstration of Plaintiffs’ diligence has been met.
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`This brings us to the third factor, whereby Plaintiffs must have diligently sought an
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`amendment of the schedule once it became apparent that they could not comply with it. Delta
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`asserts that Plaintiffs knew the size of the document production as of April 30, 2018, but they did
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`not file the instant Motion until August of 2018. United argues that “[w]hile it is true that the
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`control set disclosure contained in United’s April 27 letter contained an error, Plaintiffs
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`nonetheless had sufficient information as of April 27 to object to United’s TAR precision and
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`engage in meet-and-confer discussions,” but they did not do so. United Opp’n at 14. United notes
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`that Plaintiffs “waited” until May 23, 2018, to ask questions about the discrepancy between the
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`control set and the actual production, but even then, they did not raise objections to the precision
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`of the production until August 16, 2018, when they indicated that they were going to seek an
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`extension of deadlines. See Selpulveda Decl. ¶¶ 25-26, 33. As previously discussed, Plaintiff and
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`United engaged in multiple discussions after the April 30, 2018 core document production, to try
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`to determine the reasons for the discrepancy in recall and precision between the control set and the
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`actual production and to attempt to resolve the issue of Plaintiffs having to sift through so many
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`non-responsive documents, but there was no resolution of this issue. In the meantime, Plaintiffs
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`devoted considerable resources to the review of the United documents prior to filing this motion
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`seeking an extension. The record before this Court indicates that approximately three weeks after
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`the end of the e-mail exchange between counsel, Plaintiffs informed United that they would be
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`filing a motion to extend discovery deadlines, and that motion was filed about a month prior to the
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`first deadline which they seek to extend. Considering the circumstances in this case, the Court
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`11
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`finds that Plaintiffs exercised diligence in seeking an extension of deadlines, and accordingly,
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`Plaintiffs have demonstrated all three factors necessary for a finding of diligence.
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`2. Prejudice to the Non-Moving Parties
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`The Court next turns to an evaluation of any prejudice to the non-moving parties if the
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`requested deadlines are extended by six months. On the one hand, United’s only claim of
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`“prejudice” rests on its allegation that, if the extension is granted, it will “put this action on a path
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`for trial in mid-2020, some five years after the putative class complaints were filed in the summer
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`of 2015,” and Plaintiffs “should not be allowed to prolong this action any longer[.]” United Opp’n
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`at 5 (emphasis in original). Delta alleges that it has “expended significant resources to ensure
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`timely compliance with the Court’s deadlines [and] Delta has relied on these deadlines in
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`scheduling depositions for its senior executives, and it would be highly disruptive to cancel and
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`reschedule those depositions[.]” Delta Opp’n at 2.
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`On the other hand, Plaintiffs have articulated that “[a]bsent a schedule extension, Plaintiffs
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`will be forced to proceed with depositions, and possibly to summary judgment at the close of fact
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`discovery, without the benefit of a sufficient review of the documents.” 13 Plaintiffs note that they
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`seek an extension of discovery five months before the fact discovery deadline as opposed to after
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`the close of discovery or on the eve of trial, and furthermore, they do not seek to serve new
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`discovery, and therefore, the extension poses no unfair surprise to the Defendants. In summing up
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`the balance of prejudices in this case, Plaintiffs state that:
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`The only impact of Plaintiffs’ proposed extension is to shift the case schedule out six
`months for the fact discovery and the class certification deadline, depositions, requests for
`admissions, and motions to compel. Plaintiffs’ proposal does not affect the pretrial
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`13 Pending before this Court is a motion by Defendants to set a summary judgment
`briefing schedule, ECF No. 277.
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`12
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`schedule since the schedule for summary judgment, other pretrial proceedings, and trial
`has not been set. Plaintiffs’ need for sufficient time to review the documentary record —
`key to liability in this case — prior to taking depositions outweighs any potential
`inconvenience to Defendants from a six month delay.
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`Pls.’ Mem. at 21; see United States v. Sci. Applications Int’l Corp., 301 F.R.D. 1, 4 (D.D.C. 2013)
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`(“[M]inimal delay to the trial is significantly outweighed by the potential value that the evidence
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`has to a central issue at retrial.”); see also Equal Rights Ctr. v. Post Properties, Inc., 2008 WL
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`11391642, at *2 (finding prejudice was minimal where the summary judgment and trial were still
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`distant).
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`Weighing the Defendants’ vague claims of “prejudice” against the actual prejudice that the
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`Plaintiffs will incur in not having sufficient information before undertaking depositions, in the
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`context of this multidistrict class action lawsuit where the potential class includes millions of
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`persons, the Court finds that Plaintiffs’ claim of prejudice in not having the deadlines extended far
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`outweighs any inconvenience that Defendants will experience if the deadlines are extended.
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`Accordingly, this factor of prejudice weighs in favor of Plaintiffs’ request for extension of
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`deadlines.
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`3. Other Factors for the Court to Consider
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`The other factors that weigh into this Court’s consideration of whether to modify a schedule
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`are: (1) whether the request for modification is opposed; (2) the trial date; (3) the likelihood
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`discovery will lead to relevant evidence; and (4) the foreseeability of the need for additional
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`discovery in the light of time allotted by the district court. The Court acknowledges that the request
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`for extension of deadlines is opposed and the Court has addressed the arguments set forth by all
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`parties within this Memorandum Opinion. In this case, no pretrial or trial date has been set, and
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`trial is not imminent. Because this is a production of core documents by the Defendants, and the
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`13
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`production was made after numerous negotiations regarding search terms and methodologies, it is
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`no stretch of the imagination that the documents which are responsive to Plaintiffs’ discovery
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`requests are likely to lead to relevant evidence.
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`With regard to the foreseeability of the need for additional discovery, the Plaintiffs explain
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`that “the parties waited until they had largely completed search methodology negotiations to
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`propose a schedule so Defendants would have [a] realistic sense of how much time was needed for
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`production.” Pls.’ Mem. at 22. The Court set a strict schedule for discovery and insisted repeatedly
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`that the parties comply with the deadlines in that schedule. The parties proceeded with discovery
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`and they were complying with those deadlines until Plaintiffs received United’s core production,
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`which included numerous unanticipated non-responsive documents due to a glitch in United’s
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`TAR production. Thereafter, Plaintiffs realized that they would not be able to review all the United
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`documents in accordance with the current deadlines, and they requested an extension in a timely
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`manner. Accordingly, Plaintiffs’ need for additional time to pursue discovery did not become
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`apparent to the Plaintiffs until after United produced its core documents. Taken together, these
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`additional factors relevant to the “good cause” analysis weigh in favor of the Plaintiffs.
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`IV. CONCLUSION
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`The legal standard for this Court to modify a schedule permits this Court to exercise its
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`discretion so long as the party seeking the modification shows good cause. In the instant case,
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`Plaintiffs have demonstrated that they were diligent in assisting the Court to develop a workable
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`scheduling order. Plaintiffs have demonstrated further that their compliance with the deadlines set
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`in that scheduling order is hindered by matters that were unforeseen; i.e., United’s production of
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`core documents that varied greatly from the control set in terms of the applicable standards for
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`14
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`Case 1:15-mc-01404-CKK Document 287 Filed 09/13/18 Page 15 of 15
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`recall and precision and included a much larger number of non-responsive documents that was
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`anticipated. Additionally, Plaintiffs diligently sought an amendment of the schedule after it
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`became apparent that there was no way to resolve the excess non-responsive document issue short
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`of starting over, and the 70 attorneys engaged in document review were not going to be able to
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`complete the job under the current deadlines. Moreover, while the Plaintiffs have claimed credibly
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`that a denial of an extension of the deadlines will harm their ability to pursue their case in an
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`informed manner, particularly regarding depositions, the Defendant have not proffered any
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`prejudice except for general protestations of delay and inconvenience.
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`The Court concludes, in the exercise of its discretion, that Plaintiffs have demonstrated
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`good cause to warrant an extension of deadlines in this case based upon Plaintiffs’ demonstration
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`of diligence and a showing of nominal prejudice to the Defendants, if an extension is granted,
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`while Plaintiffs will be greatly prejudiced if the extension is not granted. Accordingly, the Court
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`shall GRANT Plaintiffs’ [270] Motion for Extension of Fact Discovery Deadlines, with the proviso
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`that no further extensions of discovery will be considered by this Court. A separate Order
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`accompanies this Memorandum Opinion.
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`DATED: September 13, 2018
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`______________/s/________________
`COLLEEN KOLLAR-KOTELLY
`UNITED STATES DISTRICT JUDGE
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`15
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