Opinion Highlights Questions Surrounding Proper Predictive Coding Protocols
Gordon v. Kaleida Health, No. 08-CV-378S(F), 2013 WL 2250579 (W.D.N.Y. May 21, 2013)
In this case, the court considered Plaintiffs’ motion “to compel Defendants to meet and confer with respect to establishing an agreed protocol for implementing the use of predictive coding software” and for an order that if the parties could not agree on an ESI protocol, that each side would submit their proposal for the court’s determination as to which should be adopted. Although Defendants initially objected to meeting and conferring with Plaintiffs and their experts based on Plaintiffs’ expert’s prior work for Defendants in the same case, the issue was ultimately resolved when Defendants indicated they were prepared to meet and confer (perhaps motivated by the court’s denial of their motion to disqualify Plaintiffs’ experts). Despite the relatively simple resolution of Plaintiffs’ motion to compel, the parties’ arguments raised interesting questions related to the level of cooperation required when one side has chosen to utilize predictive coding.