The recent predictive coding wars have led to a separate but related battle over how much information is appropriate to share—or to force a party to share—as part of the seed set and training process. One recent example is the much-litigated protocol for production of electronically stored information (ESI) in Moore v. Publicis Groupe,1 in which a federal court concluded that computer-assisted review was an appropriate means of determining relevant and discoverable documents for production. Addressing the e-discovery process more broadly, the court noted that, “[e]lectronic discovery requires cooperation between opposing counsel and transparency in all aspect of preservation and production of ESI.”2

“Cooperation” has been an e-discovery buzzword for years, originally intended as a way to encourage parties to stop engaging in e-discovery gamesmanship.3 Over the ensuing years, the idea of cooperation has, perhaps not surprisingly, turned from a shield into a sword in the hands of some parties—and judges. “Forced cooperation,” in the form of directing a party to turn over something in addition to documents it has deemed responsive to a document request—such as search terms or information related to predictive coding seeding—is not only a possible oxymoron, but also a dangerous dance on the edge of violating work product protection.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]