Our prior articles have addressed statistical document sorting technologies, various workflows that leverage this technology, and the defensibility of these technologies and workflows in court. The Kleen Products v. Packaging Corp. of America case pending before Magistrate Judge Nan Nolan illustrates the baseline of defensibility for the more traditional Boolean searching technology.
The several defendants in Kleen, an antirust case, used Boolean searches to generate a linear review set. The plaintiff argues that the process was inadequate and seeks to compel the defendants to try again using statistical document sorting technology. There is great interest in whether this case will become the first in which a party is affirmatively compelled to use statistical document sorting technology. But, leaving the question of the potential remedy aside, this case illustrates well the challenge of defending a Boolean process that is conducted unilaterally.