Two litigation partners at Paul Weiss have distilled a number of recent opinions down to a provocative conclusion that the recent trend of “forced cooperation” in e-discovery may be coming to an end as quickly as it began.
The modern age of meet and confers took a dramatic turn back at the start of 2012 when a widely read opinion in the Da Silva Moore v. Publicis Groupe case forced a producing party using technology-assisted review to, among other things, turn over documents known to be not responsive to any requests. Industry opinions quickly split, with some heralding what they saw as a prudent step to safeguard transparency and good faith, but others condemning what they saw as an alarming intrusion into long-enshrined rights of parties to produce only documents that they find to be responsive according to a reasonable discovery process.
Many wondered whether the unprecedented levels of transparency inherent in Judge Peck’s protocol would inevitably extend to reviews powered by other methodologies, including keyword culls and even traditional manual reviews. As it turns out, the pendulum seems to be swinging the other way. As technology-assisted review continues to gain acceptance as an important tool in formulating defensible, comprehensive review strategies, judges have begun pushing back against these unprecedented levels of cross-party transparency. With courts becoming more comfortable with the methodologies underpinning these newer approaches to discovery, they are increasingly adopting more nuanced approaches to cooperation that safeguard fundamental protections regarding the disclosure of non-responsive materials.
Similarly, courts are increasingly recognizing that search terms are often far more than merely correlative to responsiveness, instead revealing a party’s attorneys’ fundamental approach to a case. As e-discovery matures, courts are rightly affording more value to these terms rather than less, and recognizing that the forced disclosure of search terms against a party’s will can often represent a fundamental breach of work product doctrine. While parties often stand to gain much by willingly entering into search term negotiations (especially if they have appropriate experts on their side), the forced disclosure of search terms against a party’s will is a remedy that should be used only in exceptional cases.