A major theme of this year’s Carmel Valley eDiscovery Retreat focused on the tensions between the Sedona Cooperation Proclamation on the one hand and the work product doctrine on the other. In the new age of discovery, with few documents or communications in hard copy any longer, is opposing counsel now entitled to information about the data you have collected or prepared in anticipation of litigation and where it resides – even if much of that data turns out not to be responsive? And does this include information about data that has been identified but not actually collected? The conference debate was spirited and tended toward the extremes. Some had strong feelings that the adversarial nature of discovery is an essential part of litigation and the work product doctrine still applies – and therefore your opponent is not entitled to such information. Others argued that the nature of information and the process of discovery have undergone a fundamental transformation in the age of electronic evidence. For them, the Cooperation Proclamation is an appropriate and necessary reflection of that fact, and it may be only way for courts to get a handle on the volume and complexity of potentially discoverable information.
The debate quickly drilled down to a fairly specific example: what to do with “seed sets” when using computer assisted review. Most participants in the discussion seemed to agree that, because seed sets contain non-responsive documents, they should not be turned over. Under traditional rules of discovery, the adversary is never entitled to see non-responsive documents, so why should that change with documents that exist in an electronic format? A vocal minority argued that the other side has the right to see how the computer determined which documents are responsive and which are not. They also believed that discovery simply takes too long, and they would do whatever was necessary to expedite the process so they could get down to actually litigating the merits of the case.
Interesting debate, but don’t expect a resolution any time soon.