Edgar v. Teva Pharmaceuticals Industries, Ltd.

                  UNITED STATES DISTRICT COURT                           
                   FOR THE DISTRICT OF KANSAS                            

KEIKO EDGAR, DENA BURGE, LEIGH                                           
HOCKETT, JORDAN FURLAN, GINA                                             
GILOMEN-STUDY, UHA HEALTH                                                
INSURANCE, ANNE ARUNDEL                                                  
COUNTY, and ROGERS MACHINERY            Case No. 22-cv-2501-DDC-TJJ      
COMPANY, INC., individually and on                                       
behalf of all others similarly situated,                                 

     Plaintiffs,                                                         

     v.                                                                  

TEVA A PHARMACEUTICAL                                                    
INDUSTRIES, LTD., TEVA                                                   
PHARMACEUTICALS USA, INC., TEVA                                          
PARENTERAL MEDICINES, INC.,                                              
TEVA NEUROSCIENCE, INC., TEVA                                            
SALES & MARKETING, INC., and                                             
CEPHALON, INC.,                                                          

     Defendants.                                                         


          ORDER REGARDING DISPUTED PROVISIONS OF THE                     
     PARTIES’ PROPOSED PROTECTIVE ORDER AND ESI PROTOCOL                 

    On July 26, 2024, in accordance with the Order Regarding Phase I Discovery (ECF No. 
88), the Parties submitted the following documents to chambers via email: (1) the Parties’ proposed 
ESI Protocol and Appendix A to the ESI Protocol; (2) the Parties’ proposed Protective Order; and 
(3)-(4) the Parties’ position statements on disputes related to ¶ V(F) of the ESI Protocol and § 12 
of the Protective Order. After reviewing the above and finding oral argument would not materially 
assist in resolution of the disputes, the Court enters its ruling on the disputed provisions. As 
explained below, the Court selects Defendants’ proposed clawback provision (Option 2) for 
inclusion in the Protective Order and selects Plaintiffs’ proposed TAR provision (Option 1) for 
inclusion in the ESI Protocol.                                            
I.   Protective Order Clawback Provision                                  
    The parties disagree whether the clawback procedure for the disclosure of privileged 
information should be limited to “inadvertent or mistaken production” (proposed by Plaintiffs as 

Option 1), or whether a party may invoke the clawback procedure for all materials produced 
“whether inadvertent or otherwise” (proposed by Defendants as Option 2).  
    Plaintiffs’ proposal limits the clawback provision of the protective order to “inadvertent or 
mistaken production,” arguing Fed. R. Evid. 502(b) is expressly titled “Inadvertent Disclosure,” 
and provides a safe harbor for inadvertent production if reasonable steps were taken to prevent the 
error and then rectify it. They argue that by removing the concept of inadvertence, Defendants’ 
proposal eradicates the waiver consequences of an intentional disclosure. Plaintiffs state they 
expect Defendant Teva may attempt to use the “inadvertence-less” clawback provision to allow 

re-assertion of privilege over emails Teva intentionally produced in the EpiPen MDL to keep them 
out of this case.                                                         
    Defendants argue their proposed clawback provision for all materials “whether inadvertent 
or otherwise” is consistent with Fed. R. Evid. 502(d), and is a common and common-sense 
approach that avoids fights over whether the production or disclosure of privileged information 
was in fact “inadvertent.” They contend ample protections remain under both the Protective Order 
and the Federal Rules to allow the parties to challenge an assertion of privilege if they believe such 
a challenge is warranted.                                                 
    The Court finds Defendants’ proposed provision permitting the clawback of privileged 
materials on any basis, “whether inadvertent or otherwise,” will avoid disputes over whether the 
parties’ disclosure was inadvertent. Plaintiffs’ concern regarding the potential for clawback of 
privileged documents that were intentionally disclosed in other cases, if it becomes an issue, can 
be addressed through motion practice challenging the assertion of privilege for the specific 
documents at issue.                                                       
II.  ESI Protocol TAR Provision                                           

    The parties also propose two differing provisions for the use of Technology Assisted 
Review (“TAR”) during document review. Plaintiffs state they do not oppose the use of TAR, but 
object that Defendants seek to use TAR without disclosing why it is needed, and without 
cooperating to reach a “transparent TAR protocol.” Plaintiffs propose the following TAR provision 
for inclusion in the ESI Protocol:                                        
    If  a  producing  Party  intends  to  use  TAR  to  cull  documents  for  review  and 
    production after a good faith attempt to produce from the search term protocol, the 
    producing party shall disclose the need for implementation of TAR. The parties 
    shall then meet and confer to enter into a cooperative and transparent TAR protocol.  
    Defendants object to Plaintiffs’ provision and propose the simpler TAR provision: “The 
parties shall meet and confer to enter into a mutually agreeable TAR protocol.”  Defendants argue 
Plaintiffs’ provision eliminates the TAR cost and time saving features by specifying that TAR can 
be used to cull documents only “after a good faith attempt to produce from the search term 
protocol.” In other words, Defendants argue Plaintiffs’ proposal only allows the use of TAR after 
the parties manually review and produce documents from the search term hit population, which 
significantly increases the cost and time of document review, without a corresponding increase in 
accuracy. Defendants also oppose use of the word “transparent” for a TAR protocol because it is 
ambiguous and object to disclosing their need for implementation of TAR on the basis that it might 
waive attorney-client privilege or work product.                          
    Both sides make valid arguments, but the Court finds Plaintiffs’ proposed TAR provision 
to be the better choice. The Court finds persuasive the cases cited by Plaintiffs noting the 
importance of transparency and cooperation among counsel when a party intends to use TAR.1 
According to those cases, TAR requires “an unprecedented degree of transparency and cooperation 
among counsel in the review and production of ESI responsive to discovery requests.” Those case 

also note that courts approving the use of TAR typically “required the producing party to provide 
the requesting party with full disclosure about the [TAR] technology used, the process, and the 
methodology, including the documents used to ‘train’ the computer.”2 Plaintiffs’ TAR provision 
better aligns with these principles of transparency and cooperation as it requires the party intending 
to use TAR to disclose the need for implementation of TAR, as well as requiring a meet and confer 
to enter into a “cooperative and transparent TAR protocol.” The Court does not find the word 
“transparent” ambiguous in this context.                                  
    However, the Court recognizes the cost-saving benefits of TAR may be significantly 
reduced if a party intending to use TAR is required to first conduct an extensive manual review 

and production of responsive ESI. Plaintiffs’ proposed provision—requiring a party intending to 
use TAR to make a “good faith attempt to produce from the search term protocol” before 
implementing TAR—is unclear as to what that would entail. Prior to entry of this Order, the Court 
informally requested the parties further confer and attempt to draft additional language setting 

    1 In re Diisocyanates Antitrust Litig., No. MC 18-1001, 

2021 WL 4295729

, at *7 (W.D. Pa. Aug. 
23, 2021), E-discovery special master’s report and recommendation adopted, No. MC 18-1001, 

2021 WL 4295719

 (W.D. Pa. Sept. 21, 2021); Youngevity Int'l, Corp. v. Smith, No. 16-cv-00704-BTM(JLB), 

2019 WL 1542300

, at *12 (S.D. Cal. Apr. 9, 2019); In re Valsartan, Losartan, & Irbesartan Prod. Liab. Litig., 

337 F.R.D. 610

, 622 (D.N.J. 2020).                                        
    2 Youngevity, 

2019 WL 1542300

, at *12 (quoting Progressive Cas. Ins. Co. v. Delaney, No. 2:11-
CV-00678-LRH, 

2014 WL 3563467

, at *10 (D. Nev. July 18, 2014)).           
parameters  on what would constitute  a “good faith attempt to produce from the search term 
protocol” before using TAR. The parties advised they were unable to reach agreement. The Court 
will not craft language for the parties regarding this technical issue. Instead, the Court reminds the 
parties that a “reasonableness” standard shall apply to the TAR provision requiring a “good faith 
attempt to produce from the search term protocol.” 
     In conjunction with this Order, the Court will enter the parties’ proposed Protective Order 
with Defendants’  proposed clawback provision,  and the parties’  proposed ESI  Protocol with 
Plaintiffs’ proposed TAR provision. 
     IT IS SO ORDERED. 
     Dated August 5, 2024, at Kansas City, Kansas. 
                                               aii 7p Dames 
                                              Teresa J. James 
                                              U.S. Magistrate Judge