Over the past few years, much ink has been spilled by judges, commentators,1 and e-discovery service providers opining on the merits and drawbacks of predictive coding.2 Topics have included when predictive coding should and should not be used, which of the many competing predictive coding technologies and processes are best, whether predictive coding is more accurate than human review, and exactly how, if at all, predictive coding should be incorporated into discovery protocols.
In one of the best known court battles over predictive coding, Moore v. Publicis Groupe, the court concluded that a judge could incorporate predictive coding into electronically stored information (ESI) protocols over the objection of one of the parties.3 But what happens when the parties have already agreed to an ESI protocol, which does not include predictive coding, and one party wants to change this protocol, over the objection of the other party, by incorporating predictive coding? Can one party unilaterally alter the method of discovery, or does the agreed upon ESI protocol take precedence?
