Hat tip to K&L Gates Electronic Discovery Law blog for picking up on an interesting federal court opinion that, in the end, doesn’t actually decide anything substantive, but that is nonetheless notable for its illustration of some of the issues courts and counsel now face in the wake of last year’s groundbreaking opinion by U.S. Magistrate Judge Andrew J. Peck, Da Silva Moore v. Publicis Groupe, that was the first to give a judicial seal of approval to the use of predictive coding.
Perhaps most remarkable about this latest case, Gordon v. Kaleida Health, is that it was the judge, not the litigants, who suggested the use of predictive coding in the first place. Impatient with the parties’ year-long attempts to agree on how to achieve a cost-effective review of some 200,000-300,000 emails, U.S. Magistrate Judge Leslie G. Foschio of the Western District of New York pointed them to the Da Silva Moore ruling and suggested they try predictive coding. Here is how he explains it in his opinion:
At the last of a series of ESI discovery status conferences with the court, … the court expressed dissatisfaction with the parties’ lack of progress toward resolving issues related to completion of review and production of Defendants’ e-mails using the key-word search method, and pointed to the availability of predictive coding, a computer assisted ESI reviewing and production method directing the parties’ attention to the recent decision of Magistrate Judge Peck in Moore v. Publicis Groupe & MSL Group, 287 F.R.D. 182 (S.D.N.Y.2012), approving use of predictive coding in a case involving over 3 million e-mails.
It was a sensible suggestion on Judge Foschio’s part. Unfortunately, rather than bring the parties to agreement, the suggestion only gave them new grounds on which to disagree. Defendants took the judge up on his suggestion to use predictive coding, but the parties then quickly fell into disagreements over the extent to which plaintiffs would be involved in the predictive coding process. Plaintiffs wanted their ESI consultants to participate with defendants in establishing a protocol. They also wanted to meet with defendants to discuss various search issues that they believed were critical to the integrity of the process.
Plaintiffs Seek Agreement on Protocol
Defendants objected to having plaintiffs participate in establishing the protocol and to meeting to discuss search issues. Instead, defendants sent plaintiffs their protocol and said they would also send a list of their email custodians. When plaintiffs received defendants’ protocol, they objected to its use, asserting there were several technical issues that plaintiffs’ ESI consultants would be willing to discuss and help resolve. When defendants refused this request, plaintiffs filed a motion to compel defendants to meet and confer in order to establish an agreed-upon protocol for using predictive coding.
In support of their motion, plaintiffs contended that when a party intends to use predictive coding, it is necessary that the parties jointly negotiate a protocol to guide the process. In making this argument, they relied in part on the Da Silva Moore opinion, in which Judge Peck said, “Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI.” In keeping with this spirit of cooperation and transparency, they asserted, they should be privy to information regarding how defendants would select the set of seed documents that would be used to train the predictive coding engine.
In response to this motion, defendants told Judge Foschio they had never objected to meeting and conferring with plaintiffs regarding the predictive coding protocol. Rather, they had objected to meeting with a specific ESI consultant retained by plaintiffs, because the same consultant had previously provided services to the defendants in the same case.
Although now willing to meet with plaintiffs, defendants argued that the court should not require them to agree with plaintiffs on specific protocols, contending that the predictive coding process should be subject to the general rule that the method of ESI production is within the “sound discretion” of the producing party. Finally, defendants noted that the Da Silva Moore court never required the party using predictive coding to provide the seed set to its opponents; rather, the party volunteered to provide that data.
In the end, Judge Foschio seized on defendants’ representation that they were prepared to meet and confer with plaintiffs and plaintiffs’ ESI consultants, provided it was not the consultant who had worked for defendants. Given this representation, Judge Foschio said, there was no need to address other issues raised by plaintiffs’ motion. Thus, the judge dismissed the motion without prejudice.
The Bottom Line
Although the opinion decided no substantive issue, it is interesting for its discussion of the relative rights and obligations of litigants when one party chooses to use predictive coding. The opinion never decides the extent to which cooperation and transparency are required. But it outlines arguments we are certain to hear many times over again in future litigation.
As I said at the outset, the opinion is also interesting in that it was the judge who suggested predictive coding in the first place. Just a year ago, it was remarkable when a judge was willing to accept the litigants’ use of predictive coding. Now, we have a judge recommending its use of his own accord. That is a clear indication that, in terms of judicial acceptance of predictive coding, we’ve come a long way baby.