Are Seed Sets the New Keyword, Part III: Transparency is Good
This is part III in my continuing series about whether seed sets are the new keyword. In Part I, I raise the question of whether seed sets—the documents that form the input for predictive coding—need to be disclosed to the other party, like keywords are disclosed. I lay out the main arguments both for and against. In Part II, I discuss the argument against disclosing seed sets. In this post, I will delve into the argument for disclosure. As always, I’m just raising the issue, not taking sides.
I started my career as a litigator, in Bronx County criminal court. I was a prosecutor. After, I changed courthouses, but remained a litigator, spending six years as an enforcement attorney with the Securities and Exchange Commission. It’s been a while since I stepped into a courtroom, but I all-too-well remember what being a litigator is like.
Reason one why I would want to turn over my seed set is a simple one: eDiscovery is not an end, it’s a means to an end. Because it’s not a goal in itself, as a litigator I want to get past it as quickly as possible and on to the meat of the issue. Those of us steeped in eDiscovery forget that it’s a collateral issue for litigants. It’s easy to forget that Da Silva Moore is an employment discrimination case, what with all the ink spilled on its pretrial drama. Kleen Products is an antitrust case. Global Aerospace originated with the collapse of three airplane hangars.
As a litigator, I don’t want to deal with the side issues. All I want to is to get to settlement or trial. More than likely, remember, I already have the evidence I’m going to present. Sure, maybe discovery comes up with a gem, but more than likely, it’s not going to be because of a review. It’s going to be because I prepare before deposing a witness, or ask the witness, “did you ever write that down anywhere?”
Disclose my seed set? Sure. After all, there’ll be two types of documents in a seed set—all of which are seen by human eyes before being disclosed—relevant and irrelevant. If a document is relevant, the other side is going to get it anyway. If it’s irrelevant, who cares if it gets turned over? Let the other side waste their time going through my client’s emails about fantasy football. If that’s how they want to spend their time, more’s the benefit to me. It’s not like I’m going to turn over privileged documents along with the seed set.
Plus, it’s strategic. I want to set up a cost-shifting argument later on. I want to show myself to be reasonable. After sharing the seed set, I’d be likely to write the court about something, and mention how reasonable I’m being, sharing the seed set. That gets me a “mental plus” with the Judge. Being reasonable on a collateral matter might gain me a benefit on something substantive. And you can’t ignore that if I disclose now, my opponent has to do work now or lose their right to argue error later.
There’s a benefit to my own review. If I know that my opponent will be reviewing my seed set, it requires me to think like my opponent, to evaluate how my opponent will review it, what they’ll be looking for, and arguments about relevance they might make (and with which the judge might agree). And when I run my final predictive coding runs, I can think about relevance from a global perspective, not just my own. This also means that if the judge does rule against me, I can represent that I’ve already taken it into account, saving me time and money later.
And let’s not forget the client. They want a less expensive review that enables a more efficient settlement, or a more positive litigated result. These objectives are better served by cooperation than by a smash-mouth litigation stance.
Besides the litigator’s view on disclosure, there’s also something to be said for listening to Sedona. Nary an opinion of Judge Scheindlin goes by without her quoting the Cooperation Proclamation. The idea of sharing seed sets, of fully and openly working to fulfill the mutual duty to disclose, flows from that. Plus, cooperation is not incompatible with zealous advocacy.
So the simple question is, given the benefits that come from forestalling argument on a collateral matter, why not disclose?