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.
