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Cooperation Meets Reasonableness

Another week, another significant precedent for technology-assisted review. Last year, the question was whether judges would permit parties to use technology-assisted review. Now, at least one judge has recommended that parties use this tool.

After the parties in Gordon v. Kaleida Health (W.D.N.Y. May 21, 2013) spent more than a year debating how to review the defendants’ collection of 200,000 to 300,000 e-mails, U.S. Magistrate Judge Leslie G. Foschio invited the parties to use technology-assisted review and referred them to the decision in Da Silva Moore v. Publicis Groupe for guidance.

Beyond the judge’s endorsement, however, there is another interesting aspect of this order. The plaintiffs objected to what they perceived as a lack of transparency, and further insisted that the defendants must collaborate with the plaintiffs’ ESI consultants to establish a protocol governing the use technology-assisted review for the matter. The defendants refused because the ESI consultants had provided scanning and coding services to them earlier in this case.

The plaintiffs then filed a motion to compel the defendants to share the seed set of documents used to train the technology-assisted review algorithm and to participate in “meaningful meet and confer discussions regarding an ESI protocol with both parties’ respective ESI experts/consultants.” They relied on U.S. Magistrate Judge Andrew J. Peck’s observation in Da Silva Moore that “[e]lectronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI.”

Although they disagreed with the plaintiffs’ interpretation of the case law, the defendants offered to collaborate with the plaintiffs so long as they retained different e-discovery consultants. However, they rejected the plaintiffs’ request to review the seed set; they noted that the defendant in Da Silva Moore voluntarily shared its seed set and asserted that “courts do not order parties in ESI discovery disputes to agree to specific protocols to facilitate a computer-based review of ESI based on the general rule that ESI production is within the ‘sound discretion’ of the producing party.”

Because the defendants offered to generally cooperate with the plaintiffs on finding the right approach to the review, Judge Foschio denied the plaintiffs’ motion and did not reach the merits of the parties’ arguments. Even so, the case foreshadows issues likely to arise in future conflicts and underscores the weight that judges place on cooperation. Parties arguing over the use of technology-assisted review would be well advised—just as with any other discovery issue—to attempt to find common ground before approaching the court.

Stuart LaRosa is a senior search consultant with Conduent. He can be reached at