Leveraging Early Case Assessment for Food Industry Litigation, Food Product Design

1. Scores of manufacturers of food and beverage products have
become the targets of consumer fraud class actions
challenging their use of words such as “all-natural,”
“wholesome” and “healthy” on their labels.
Although many of these claims range from frivolous to
meritless, the companies still face the prospect of massive
document collections and reviews, which often bloat their
legal expenditures beyond budget and cut into their already
narrow margins. There may be no “silver bullet” to stifle
these threats, but there is promising new technology that
can be effective in evaluating liability and promoting
strategic action early enough to make a difference.
Early case assessment (ECA) promises superior knowledge
earlier in the game with rewards of better outcomes and
lower costs. There are tools, which can leverage next
generation search technology, assist defense counsel in
evaluating potential liability and enable strategic planning.
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2. ECA can empower proportional budgeting for litigation or
determining reasonable settlement values. For this theory to
hold, however, activation of the ECA process should be
undertaken as soon as allegations are raised or a complaint
is received.
Against a background of exploding volumes of evidence, the
modern litigation battlefield has contained minefields, primed
with punishing sanctions for spoliation or other discovery
errors, elevating the risk and costs of defending against
charges. In the past, data had to be collected and processed
before it could be reviewed, essentially front-loading costs
before meaningful analysis could take place. By revealing the
big picture early on, ECA promoting better and faster
strategic decision making early enough in the process to
make a material difference in both costs and outcomes.
Take a hypothetical example of a diet-bar manufacturer
facing a consumer fraud class action for allegedly
misrepresenting claims that its product “promotes good
health” and contains “all-natural” ingredients. By the time
the plaintiffs’ lawyer has filed the complaint, the key
documents — the label, advertising and the publicly available
regulatory story — will already have been reviewed and
exploited by the plaintiffs. Discovery requests predictably will
focus on internal email correspondence in product
development, testing, copywriting and marketing areas, as
well as financial information on sales, profits and
distribution. Understanding what those documents and
communications mean to the value of the case is key to
making rational decisions and controlling costs.
Initially, ECA can help the legal team by offering an early
preview of the evidence. Using the knowledge gained
through the ECA process, manufacturers and their counsel
are better equipped to perform a cost-benefit analysis to
determine whether to proceed with litigation before
undertaking the expense of collecting, processing and
reviewing data.
In our hypothetical diet-bar suit, the manufacturer will be
able to determine if its labeling conformed to FDA
regulations, had been reviewed by outside counsel and if its
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3. nutritional claims were supported by scientific evidence. It
may be able to make out a good argument for early
dismissal by demonstrating that the product claims were
supportable, and were not false or exaggerated.
Establishing a Discovery Plan
Failure to plan is planning to fail. Insights gained through the
ECA process will reveal what evidence is available and what
holes need to be filled to mount a successful defense. In
Federal Court, the Rule 26(f) conference provides an
outstanding opportunity to limit discovery and agree on
protocols that can be very advantageous for food product
defendants.
Assuming the matter was not quickly dismissed or settled,
the parties should arrive at the meet and confer conference
with as comprehensive a picture of their data as possible. By
surveying the data landscape in advance, parties will obtain
the clarity required to conduct an effective conference.
Particular attention should be focused on key players and the
volumes and types of data in play. With ECA, counsel can
obtain this necessary insight into which terms are most
effective at finding items that will ultimately need to be
produced, improving planning for discovery as well as
communication with opposing counsel.
Reducing Data Sets
In most cases, a very small percentage of the data will turn
out to have any relevance to a given litigation. Experienced
litigators know that even a smaller subset of that will
ultimately end up in the courtroom. How to find those key
documents early on is a key to developing a winning strategy
and containing costs.
Many practitioners approach the process by using keywords
to filter data to find the key documents. These efforts may
reduce a data collection by, on average, 50 to 75 percent.
Reviewers are routinely employed to conduct a document-
by-document review of the resulting mass to find the
important evidence and to protect privilege, trade secrets
and the like. Depending on the type of matter, the issues
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4. involved and the review platform, the speed of the review
may range from 30 to 70 documents per hour, which, in
large cases, can cost millions of dollars.
ECA helps narrow the search for responsive data to specific
dates, custodians, sources, key terms, phrases or concepts.
By reducing the size of the haystack at an earlier point in the
process, litigants can avoid the expense of processing and
reviewing a bulk of the documents that would otherwise be
determined to have been irrelevant. Utilizing next-generation
search techniques and review-enhancement technology can
result in a much more efficient review process, with hourly
document review rates in the range of 60 to 150 documents
per hour or higher. With intelligent filtering of documents,
there are fewer documents to collect, process and send to
the review team. On average, ECA users reduce data sets by
75 to 90 percent.
Other Applications for ECA
ECA has numerous applications outside the litigation context.
For instance, in FDA regulatory matters, it can help identify
data that is responsive to government inquiries. During
internal investigations, it can isolate data that might indicate
noncompliance, assist in due diligence reviews or help
identify employee misbehavior. ECA can even help
organizations pinpoint potential weaknesses or
inconsistencies before they transform into legal problems.
One of the most promising applications of ECA involves the
reuse of data. Some ECA tools offer a single, centralized
repository where clients can search, organize and export
data across matters. These organizations can use modern
litigation technology to develop “knowledge bases” that
leverage prior identification of important evidence and their
review decisions to avoid the time and cost of reprocessing
and repetitive review.
The foundation for success in any legal matter is developing
a winning strategy. ECA enables the food and beverage
industry to build that foundation by giving them deep
visibility into their universe of data. Working smarter in the
early stages of discovery leads to better results.
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5. Ronald J. Levine, Esq. — Ron Levine is partner and co-
chair of the Litigation Department at Herrick, Feinstein, LLP.
His practice concentrates on complex corporate litigation,
especially multi-party actions. With over 30 years of
experience, Ron specializes in class-action defense in the
consumer products field, with a focus on the food and
beverage industry. In addition to counseling on corporate
legal and public relations strategies, Ron has chaired high-
profile advisory boards and conferences in the food and
beverage industry and currently co-authors a monthly
newsletter on trends in food industry litigation. He is
consulted by the news media and quoted extensively by
Reuters and Lawyers USA on food labeling litigation. He
received his law degree from Harvard Law School and his
undergraduate degree from Princeton University.
Canaan E. Himmelbaum, Esq. — Before his current role as
vice president of sales for Advanced Discovery, Canaan
practiced law for eight years as both in-house and outside
counsel. During his tenure at international nutritional
solutions and cheese group, Glanbia (fka BSN, Inc.; London
Stock Exchange symbol GLB), he was responsible for
important aspects of the company’s litigation portfolio,
including e-discovery. Canaan has spoken on panels and has
written numerous articles about the e-discovery market
since making the transition from legal to sales in 2009. He
has been integral in rolling out the Food Litigation
e-discovery Initiative at Advanced Discovery and continues
to assist food and beverage companies with their ongoing
e-discovery needs. Canaan received his law degree and
undergraduate degree from the University of Florida.
Michael J. Glick, Esq. — Is senior executive vice president
of technology solutions at Advanced Discovery. Over the
past 25 years, Glick has focused on creatively implementing
processes and procedures in the legal services industry to
effectively reduce costs while increasing client service levels
and satisfaction. As a pioneer in e-discovery, Michael has
synthesized the intersection of legal understanding and
technological expertise to provide novel solutions for his
clients. He has been instrumental in negotiating discovery
stipulations within the Rule 26(f) meet and confer process
and has pioneered creative solutions for data minimization,
database design and implementation. A frequent speaker on
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6. cutting-edge technology issues, Michael received his law
degree from Loyola Law School and his undergraduate
degree from the University of California, San Diego.
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