Disclosure of Seed Sets: Required to Cooperate or Protected as Attorney Work Product?

The reliability and accuracy of the predictive coding process depends heavily on the identity of the documents in the seed set (including documents deemed irrelevant), because the seed set is the primary source used to teach the computer how to recognize patterns of relevance in the larger document universe. Indeed, miscoding just a few thousand documents—mere kilobytes nestled among terabytes of data—could substantially alter the results of the predictive coding that follows. A biased seed set coding could lead to large swaths of relevant documents being deemed irrelevant, and a smoking gun could be missed. Recognizing the power of this relatively small bit of data, e-savvy attorneys seek to obtain as much information about their adversary’s seed set as possible.

Certainly there is no harm in requesting such information, and sometimes parties will agree to disclose an entire seed set, including those documents the producing party has deemed irrelevant. Da Silva Moore v. Publicis Groupe, 287 F.R.D. 182, 186-87 (S.D.N.Y. Feb. 24, 2012), dealt with voluntary disclosure of irrelevant documents from the seed set, as well as certain information relating to the human reviewers’ methodology for coding the set. But when a request is declined, and the parties disagree on the extent to which seeding data must be shared, is either party entitled to receive such information from its adversary? This article explores this question, which remains unsettled.