Key E-Discovery Ruling Backtracks On A Cooperation Requirement

Nixon Peabody attorneys consider another e-discovery ruling from Federal Magistrate Judge Andrew J. Peck from the Southern District of New York, one that clarifies and to some extent lowers the bar for what opposing parties need to do in the name of cooperation. It was Judge Peck who issued the seminal Da Silva Moore v. Publicis Groupe & MSL Group ruling that is said to have cleared the way for technology-assisted review. Part of that ruling encouraged sharing of “seed sets” used to establish and narrow parameters that are then used to search the larger mass of data. It since became apparent that the seed sets could contain sensitive company information that had nothing to do with the litigation at hand. Now, in Rio Tinto PLC v. Vale S.A., Judge Peck appears to have tempered the Da Silva ruling by recognizing that having to reveal seed sets to opposing counsel can in effect discourage technology-assisted review, and that it isn’t the only way for a producing litigant to satisfy the cooperation obligation.