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Welcome to the new eLessons Learned
eLessons Learned features insightful content authored primarily by law students from throughout the country. The posts are written to appeal to a broad spectrum of readers, including those with little eDiscovery knowledge.
Each blog post: (a) identifies cases that address technology mishaps; (b) exposes the specific conduct that caused a problem; (c) explains how and why the conduct was improper; and (d) offers suggestions on how to learn from these mistakes and prevent similar ones from reoccurring.
Visit our signature feature, e-Discovery Origins: Zubulake, designed to give readers a primer on the e-discovery movement through blog posts about the Zubulake series of court opinions which helped form the foundation for e-discovery. Go There
Interested students may apply for the opportunity to write for e-Lessons Learned by filling out the simple application. Go There
The plaintiff, Country Vintner, had an agreement with a winery (Esmeralda, who was not named a party to the action) to be the exclusive wholesaler of Alamos, which is an Argentinean wine, in North Carolina. A few years later, the defendant, Gallo, started supplying the wine to a variety of other wholesalers, but not to Country Vintner. The plaintiff sued Gallo for violations of the North Carolina Wine Distribution Agreements Act and for violations of the N.C. Unfair and Deceptive Trade Practices Act. Inevitably, there were disagreements over discovery of Electronically Stored Information (ESI). The plaintiff wanted emails and other ESI that would establish that there had been some sort of collusion between Esmeralda and Gallo that ended up excluding Country from the distribution of Alamos. The parties agreed to narrow the discovery request to certain key words, date restrictions, employees, etc., in order to accommodate Gallo’s complaints of an undue burden and expense to produce the requested information. After much deliberation, and accompanying motions, the district court decided to adopt Country’s proposal, ordering several search-narrowing guidelines. Gallo then collected more than 62 gigabytes of data and gave the data to their lawyers to process and review. The lawyers processed the data into a) searchable data, b) removed system files and exact duplicates, c) and ran several variations of the 19 proposed search terms and phrases. The district court eventually granted Gallo a motion to dismiss the complaint regarding the Unfair and Deceptive Trade Practices Act, and also granted them summary judgment for the remaining Wine Act complaint. Then, perhaps getting a little ahead of itself, Gallo sought to recover $111,047.75 for their eDiscovery work. They broke down the costs as follows: $71,910.00 – for “flattening” and “indexing,” basically making the files searchable and removing duplicate content; $15,660.00 – for extracting the metadata, facilitating data review and other such things; $178.59 – for the conversion from native format to a .tif or .pdf format; $74.16 – for electronically Bates stamping the information; $40.00 – for copying the data onto a disc; $23,185.00 – for ensuring the “quality” of the data and ensure proper preparation of the documents for opposing counsel. The court granted a drastically reduced ESI-related recovery in the amount of $218.59. This covered the costs for copying or duplicating the files but not for their preparation or anything else. The court relied on a 2012 Third Circuit decision (Race Tires Am., Inc. v. Hoosier Racing Tire Corp.) and interpreted the applicable statute (28 U.S.C. § 1920(4), a.k.a. the “taxation of costs” statute) to exclude ESI processing costs. When Gallo appealed this decision, the Fourth Circuit affirmed the lower court’s decision. The court proceeded to go through the history of taxation of costs, which hadn’t existed prior to 1853, and has been slowly added to our law over the years. The latest version of section 1920 was amended in 2008, and allowed for fees for “printed or electronically recorded transcripts necessarily obtained for use in the case;” and “fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case.” The court cited a Supreme Court decision that discussed the purpose of section 1920, and said that taxable costs should be a small fraction of the overall costs in litigation, and therefore should be interpreted narrowly to include only what is written in the law. Therefore, “making copies” was interpreted quite literally to include only the costs of actually making the copies, which in this case meant conversion to PDF and TIFF formats, and copying them onto a CD/DVD. Interestingly, the court also responded to the claim that the current e-technology requires more extensive preparation and therefore greater costs, by saying that preparation of discovery documents was always a big cost, yet were not authorized by Congress to be “taxable.” Gallo also tried to argue that when the statute provided for “exemplification” to be included in taxable costs, that it would include the costs in this case, since they had to load the information onto a review platform. The court said that exemplification does not apply here, since it means “an official transcript of a public record, authenticated as a true copy for use as evidence.” In our case, the charges didn’t include either any public records to be authenticated, or any exhibits. So the costs did not qualify as exemplification. What can be learned from this case is that although there are many things that go into the preparation of any type of discovery, including ESI, the costs of that preparation are not always carried by the requesting party. Undoubtedly, the charges that the defendant was trying to tax onto the plaintiff were legitimate. However, the history of the taxable charges laws has shown that the costs of production of discovery have been greatly limited to the copying stage, and not to the production. I would suggest, therefore, that before a party actually goes through the production and incurs its costs, perhaps they should include the costs into their discovery agreement. Akiva Shepard received his J.D. from Seton Hall University School of Law in 2014. Akiva has worked for a New York State Supreme Court Judge in Kings County and for a NJ real estate firm.
Defendant Youkers was sentenced to an eight-year prison term. Youkers thereafter filed a motion for a new trial alleging that the judge who sentenced him engaged in improper communications and was not impartial. In particular, the father of Youkers’s girlfriend was one of the judge’s Facebook friends. The father also sent a message to the judge about Youkers’s pending case. Despite these potentially alarming facts, the judge testified that he knew the father because they both ran for office during the same election cycle. The judge testified that a mere Facebook friend designation was the extent of their relationship. Upon receiving the message from the father, the judge told the father that such communication was improper and he notified the appropriate individuals. To make Youkers’s allegations even weaker, the father was actually seeking leniency for Youkers. The court notes that the American Bar Association (ABA) has said in formal opinions that judges are not barred from using social media. Merely designating someone as a friend on Facebook “does not show the degree or intensity of a judge’s relationship with a person.” ABA Standing Comm. On Ethics & Prof’l Responsibility, Formal Op. 462 (2013). Accordingly the court concluded that the mere fact that the father and the judge were Facebook friends, by itself, did not suggest bias or partiality. The court concluded that there was no evidence of actual bias. Furthermore, because the judge fully complied with the Texas Committee on Judicial Ethics’ recommended procedure for treatment of ex parte communications, a reasonable person would conclude that there was no appearance of impropriety. Had the judge not followed state procedure on the treatment of ex parte communications, things might have gone differently. Judges should be very careful about all their communications and relationships over social media. Although in this case there was no communication between the judge and the father besides the father’s message and the judge’s response, a court might be willing to find bias if there was an ongoing relationship. Although a mere Facebook friendship alone does not establish anything, other communications over Facebook might have the effect of tending towards partiality. Rocco Seminerio is a 2014 Seton Hall University School of Law graduate. Mr. Seminerio focused his studies in the areas of Estate Planning, Elder Law, and Health Law. He graduated from Seton Hall University’s undergraduate program in 2011 with a degree in Philosophy. He is also interested in the life sciences.
In W Holding Co., Inc. v. Chartis Ins. Co. of Puerto Rico, the receiver of Westernbank, FDIC-R brought action under the Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA) against the banks’ directors and officers (D & O’s) for gross negligence, breach of fiduciary duties, fraudulent conveyances, and adverse domination. Prior to discovery, FDIC-R proposed an order establishing a protocol for discovery of Wesernbank’s ESI and to reduce the number of written interrogatories it would receive. The D & O’s offered a competing protocol. The court denied FDIC-R’s request to alter the number of interrogatories and issued a separate order to establish ESI protocol. When FDIC stepped in as a receiver for Westernbank, it possessed 6.8 terabytes of ESI and over 900,000 paper documents. FDIC spent $2.1 million to put the ESI into a system called DMS iConnect (“DMS”), an internal database where the relevant paper documents were scanned into digital images and processed to generate searchable text. FDIC waned to use a second contractor-maintained system called Relativity to give its litigation opponents searchable access to selected data, which will cost $450 per gigabyte to move. FDIC-R wanted D & O to share in the costs. FDIC–R advanced three rationales in support of its proposal: (1) ESI production costs are analogous to “copying costs” borne by the requestor; (2) the Westernbank ESI is “not reasonably accessible” under Rule 26(b)(2)(B); and (3) the seven-factor test applied in Zubulake III requires cost-shifting in this case. The court disagrees with all three FDIC-R’s arguments. As to the argument that production costs are analogous to copying costs, the Court felt that FDIC-R failed to explain how those costs are outside the realm of gathering and preparation expenses customarily borne by responding parties. As for accessibility, the Court disagreed with FDIC-R’s position that Federal Rule of Civil Procedure 26(b)(2)(B) required cost-shifting when large volumes of ESI were involved. To be inaccessible, the FDIC-R would have to argue the “cost or burden” of production is tied to “some technological feature that inhibits accessibility.” However, the FDIC-R failed to raise any technological issues. The court further noted that the relevant data had already been uploaded into a searchable and organized retrieval system. The court also rejected FDIC-R’s third argument that the seven-factor test in Zubulake III requires cost shifting. Zubake also requires that the date in question be inaccessible, which the Court already stated was not. Finally, as to the request to limit the number of interrogatories, the Court believed the requests were “too speculative to merit a ruling at this time.” The Court felt that until the parties take more affirmative discovery steps, there is no ground for the Court to alter the defaults under the Federal Rules of Civil Procedure. Salim received his B.A. in Applied Communications, with a minor in Legal Studies, from Monmouth University. In 2014 he received his J.D. from Seton Hall University School of Law in 2014. Salim’s past experiences include interning for a personal injury law firm prior to attending law school, as well as judicial internships in the Civil and Family Divisions.
Just like TNT, the Second Circuit sure knows drama. After years of protracted litigation, the Second Circuit finally put an end to an attempt to recuse a judge for knowing too much about eDiscovery and predictive coding. On April 10, 2013, in an incredibly brief order most likely meant to send a message deeper than its two sentences, a Second Circuit Judge denied a request for the recusal of Judge Andrew J. Peck from an ongoing employment discrimination case. According to Judge Jane A. Restani, “Petitioners have not ‘clearly and indisputably demonstrate[d] that [Magistrate Judge Peck] abused [his] discretion’ in denying their court recusal motion… or that the district court erred in overruling their objection to that decision.” The contentious attempts to recuse Judge Peck stemmed from a discovery dispute after Judge Peck ordered the parties to use a method of predictive coding during discovery. Although the parties seemed to agree that predictive coding should be used, they could not agree on the methods of predictive coding that would be implemented. The plaintiffs believed that Judge Peck favored the defendants in his order, and therefore they moved to recuse the judge because of his established history with eDiscovery and more specifically, his history of actively advocating predictive coding. Judge Peck has a long history of participating in eDiscovery conferences and was considered one of the Court’s “experts in e-discovery.” National Day Laborer Organizing Netwrok v. U.S. Immigration and Customs Enforcement Agency, 2012 WL 2878130, 11 (S.D.N.Y. 2012). Judge Peck was even involved in one of the first cases to order the discovery of electronic data. Atlantic-Monopoly, Inc. v. Hasbro, Inc., 958 F.Supp 895 (S.D.N.Y. 1995). Despite the strong undertones of the order’s brevity, the plaintiffs continued to fight this seemingly uphill battle and later filed a cert petition to the Supreme Court. Rather than attacking Judge Peck’s background and connections to the eDiscovery community, the plaintiffs in this case should have instead accepted that judges need to actively participate in conferences and seminars to better understand the technology implicated in eDiscovery. Just as attorneys can no longer ignore the ramifications of eDiscovery, judges too must enhance their knowledge to further develop this complicated area of law and readily adapt it to continually changing technology. Judges should not be punished or accused of bias for engaging in programs geared towards teaching them about technology and its implications on eDiscovery. If this were at all all permitted, judges would be afraid to participate in seminars and review panels, which would stagnate the development of the law, a process that is already far-behind the rapid progress experienced by technology. Jeffrey, a Seton Hall University School of Law graduate (Class of 2014), focused his studies primarily in the area of civil practice but also completed significant coursework concerning the interplay between technology and the legal profession. He was a cum laude graduate of the University of Connecticut in 2011, where he received a B.S. in Business Administration with a concentration in Entrepreneurial Management.
By the time In re Biomet made it in front of a Seventh Circuit Judge for a ruling, 2.5 million documents and attachments were produced to the plaintiffs in this large class action case against Biomet. The plaintiffs wanted the judge to order the discovery of electronically stored information. The plaintiff’s Steering Committee was unhappy with the amount of documents produced and claimed that it should have been almost five times that amount. The plaintiffs challenged the electronic discovery procedure that Biomet had undertaken. Specifically, the plaintiffs wanted the judge to make a ruling that the defendant’s process was “tainted” by their use of keyword culling. The judge disagreed and refused to make such a ruling, which would have thrown Biomet back to almost square one. Biomet went through an extensive process to cultivate documents to produce for the plaintiffs. Biomet first used “electronic search options, then predictive coding, and finally personal review.” The plaintiff’s issue was primarily the first step that defendants irrevocably ruined the rest of their document production from the get-go. To first identify what documents would be relevant the defendant used a “combination of electronic search functions” which included keyword culling. The defendant’s original pool consisted of 19.5 million documents and attachments which the first step narrowed down to 3.9 million (eventually getting to 2.5 million documents). The plaintiffs thought they should have produced 10 million documents and said their keyword searches were the problem. The plaintiffs cited to a New York Law Journal article that said that keyword searches were “only 20 percent” responsive. According to the plaintiffs, Biomet’s approach was flawed because it used the “less accurate” method of keyword search in the beginning instead of predictive coding. They asked for the judge to rule that the defendants had to go back to the first step and use predictive coding with “plaintiffs and defendants jointly entering the ‘find more like this commands’. The judge found that the plaintiff’s journal article and one cited search claiming that Boolean and keyword searches are less effective at producing relevant documents were insufficient in proving that Biomet did not meet its discovery obligations. Instead, the judge found that its procedure did comply with FRCP 26(b) and 34(b)(2). The judge also refused to read into the rules that Biomet had to allow the plaintiffs to sift through possibly privileged documents with them. The judge also found that Biomet fulfilled their federal requirements as proven through their statistical sampling and confidence tests that they ran over their documents. This sampling found that less than 1.34 percent of the documents that weren’t selected would be responsive and that between 1.37 and 2.47 of the original 19.5 were. Biomet’s process singled out 16 percent out of that original. The judge cited heavily to FRCP 26 (b)(2)(C) and said that Plaintiffs’ request did not comport well with proportionality. Biomet had already spent $1.07 million and “will total between 2 million and 3.25 million.” Were Biomet to go back to their original bank of ESI, it would cost them in the low seven-figures. The judge said that it would not make Biomet do that just to test the plaintiffs’ theory that more responsive documents would be found through predictive coding instead of keyword searches.
Phillips v. WellPoint, Inc., involved an application for costs by the prevailing defendant, WellPoint. Among the costs sought to be recovered by WellPoint were $83,642.83 for "the process of scanning hard copy documents so that they could be produced in electronic format" and for services “for the preparation of native electronic files and documents for production in electronic format.” WellPoint sought to recover these as costs of "making copies." Federal Rule of Civil Procedure 54(d)(1) provides that “[u]nless a federal statute, these rules, or a court order provides otherwise, costs—other than attorney's fees—should be allowed to the prevailing party.” Those costs may include: (1) Fees of the clerk and marshal; (2) Fees for printed and electronically recorded transcripts necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; (5) Docket fees under section 1923 of this title; (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title. 28 U.S.C. § 1920 (emphasis added). In evaluating the extent to which costs associated with producing electronically stored information ("ESI") are recoverable, the court, with no in circuit precedent on point, analyzed and ultimately adopted the Third Circuit's reasoning from Race Tires America, Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158 (3d Cir. 2012). In Race Tires, the Third Circuit found that the scanning of hard copy documents and the conversion of native files to TIFF were costs recoverable within the statutory meaning of “making copies.” However, the Third Circuit further found that although “extensive ‘processing’” may be “essential to make a comprehensive and intelligible production” of ESI, not all costs of producing ESI—such as the preliminary steps in the discovery process, such as locating documents, travelling to the location of the documents, or screening potentially relevant documents for privilege—are recoverable. Applying these principles, the court found the majority of costs sought by WellPoint to be non-recoverable. Only costs for imaging of hard copy files and conversion of documents into single TIFF images were recoverable. Conversely, the following costs were not recoverable: the extraction of document text; the process of rehabilitating documents in which the metadata fields and document text were damaged; applying bates stamp numbers; creating an image load file; creating a concordance-ready data load file; working with the clients in establishing production requirements; conducting quality control. The result was WellPoint only recovered $26,711.00 of the $83,642.83 sought. Adam L. Peterson is a student Seton Hall University School of Law, Class of 2014 graudate. At Seton Hall, Adam was a member of the Seton Hall Law Review and prior to law school Adam was an Environmental Analyst with the New York State Department of Environmental Conservation.
One might think that in a lawsuit if your adversary is caught breaking the rules there might be some penalty. However, in Cottle-Banks v. Cox Communications, the Honorable Gonzalo P. Curiel of the District Court for the Southern District of California held otherwise, allowing the defendant’s misconduct to go unpunished. This case started when Brittini Cottle-Banks alleged “that Cox has violated the negative-option-billing provision of the federal Cable Act by failing to disclose and obtain customers’ consent to be charged for monthly rental fees associated with their cable set-top boxes.” Due to this allegation, Cox had a duty to preserve any potentially relevant evidence. The evidence in question consists of records of telephone calls made to Cox by customers. Despite being put on notice that they had a duty to not record over the records of these calls, Cox did just that. This taping over resulted in about 6 months worth of calls being taped over. With proof of this spoliation of evidence, Cottle-banks moved for an adverse inference sanction; an order from the court instructing a jury to assume that whatever was deleted was evidence against Cox. However, the 9th Circuit does not have a rule on this sanction so Judge Curiel used the standard from the second circuit. For an adverse inference sanction a party must establish that their adversary: had control of the evidence, a culpable state of mind, and the spoiled evidence was relevant and supportive of a party’s claim or defense The evidence of these first two elements is clear. Cox clearly had control and their failure to preserve despite being put on notice is indicative of a culpable state of mind. However, because “the burden falls on the ‘prejudiced party’ to produce ‘some evidence suggesting that a document or documents relevant to substantiating his claim would have been included among the destroyed files.” Since Cottle-Banks had no proof that she was prejudiced by Cox’s spoliation of evidence, the Court refused to grant an adverse inference sanction. Thus, if you are going to move for an adverse inference sanction, be sure to have some proof of prejudice. Matthew G. Miller, a Seton Hall University School of Law student (Class of 2014), focuses his studies in the area of Intellectual Property. Matt holds his degree in Chemistry from the University of Chicago. Currently, Matt works as a legal intern at Gearhart Law.
We all know that break-ups can be difficult, but when a person’s conduct crosses certain boundaries, it can become harassment. Whether this is done physically or electronically, the damage remains the same. In People v. Kucharski, the plaintiff and the defendant ended a two-and-a-half year relationship. Rather than take the high road, the defendant decided to alter the plaintiff’s MySpace page, post lewd pictures and obscene comments, and change her login information. After a bench trial the defendant was convicted on two counts of violating the Electronic Harassment Statute and one count of violating the Encryption Statute, which he appealed. Following their separation, the defendant logged onto the plaintiff’s MySpace account, which he created on her behalf, and made certain alterations. Specifically, the defendant posted a picture of the plaintiff in underwear and replaced her profile information with lewd and obscene comments. Detectives served a warrant to MySpace to obtain the e-mail address associated with the account as well as the IP address of the computer that accessed the account during the time in question. The investigation led to the home of the defendant, who lived with his parents and younger sibling. Shortly thereafter, most of the plaintiffs profile information was deleted and she was no longer able to access her account. The state had to show that the defendant used electronic communication to make an obscene comment with intent to offend. The the defendant does not argue that the State failed to show that the alterations to the MySpace page were done with intent to offend. Rather, the defendant argues only that 1) there was insufficient evidence to show that he altered the MySpace page and 2) the alterations were not “obscene.” The court did not buy this argument. The overwhelming evidence demonstrated that the defendant was in possession of the photograph that replaced the initial profile picture, the defendant had a motive, and these were the only two individuals who knew the login information. Furthermore, the court found the comments and posts made by the defendant to be “disgusting to the senses” or “abhorrent to morality or virtue.” Simply put, the defendant could have expressed the same ideas in a different and more tolerable manner. Finally, the defendant appealed his conviction based on the Encryption Statute for changing the login information and preventing the plaintiff from accessing her account. The court looked at the dictionary definition of “encryption:” “[T]he use of any protective or disruptive measure, including, without limitation, cryptography, enciphering, encoding, or a computer contaminant, to: (1) prevent, impede, delay, or disrupt access to any data, information, image, program, signal, or sound; (2) cause or make any data, information, image, program, signal, or sound unintelligible or unusable; or (3) prevent, impede, delay, or disrupt the normal operation or use of any component, device, equipment, system, or network.” The court overturned the defendant’s conviction, finding him not guilty of Unlawful Encryption. The court reasoned that simply placing a password on a document does not involve the transformation, manipulation, or destruction of data. Therefore, changing the password did not fall within the meaning of encryption as used within the statute. Would you agree?
This particular dispute revolved around ProconGPS, Inc.’s, the plaintiff, desire to introduce infringement charts or alternatively to amend its infringement contentions pursuant to Patent Local Rule 3–6 so the contentions were consistent with its infringement charts. The Northern District of California issued an opinion without oral argument granting the plaintiff’s motion to compel. These charts were provided as an answer to Skypatrol, LLC’s, the defendant, interrogatories asking for ProconGPS's evidence that the defendant performs, induces, and/or contributes to the infringement of each of the asserted claims of the patents-in-suit. The defendant argued the charts expanded the scope of allegations. Conversely, the plaintiff responded that the charts simply provided in more detail the information it obtained during discovery. The dispute is governed by Patent Local Rule 3-6 which stated: Amendment of the Infringement Contentions or the Invalidity Contentions may be made only by order of the Court upon a timely showing of good cause. Non-exhaustive examples of circumstances that may, absent undue prejudice to the non-moving party, support a finding of good cause include: (a) A claim construction by the Court different from that proposed by the party seeking amendment; (b) Recent discovery of material, prior art despite earlier diligent search; and (c) Recent discovery of nonpublic information about the Accused Instrumentality which was not discovered, despite diligent efforts, before the service of the Infringement Contentions. The court focused on section (c) and determined that the plaintiff had been diligent. The defendant had produced its discovery documents very slowly. Only 2,478 pages of documents were produced by December 7, 2012. About 500,000 more pages were produced in 2013 and the defendant’s source code was not made available until January 30th with paper copies produced in February. Additionally, the plaintiff proved the information was nonpublic because it was almost entirely made up of material that Skypatrol has designated “Highly Confidential–Attorneys' Eyes Only.” The defendant tried to argue the inclusion of the charts would prejudice it. However the defendant could not sway the court as it was not subject to any further discovery requests and no new products were added to the infringement claim. It appears that this is simply a case where Skypatrol could have prevailed had it provided its documents in a more timely fashion. Since the defendant did not produce everything before the Infringement Contentions as described in Patent Local Rule 3-6(c), the plaintiff was able to utilize Patent Local Rule 3-6. George is a graduate of Seton Hall University School of Law (Class of 2014). George complated both the Health and Intellectual Property Concentrations and is especially interested in patent law. He received both a B.E. and M.E. at Stevens Institute of Technology in Biomedical and Systems Engineering, respectively. During his time at Seton Hall, George worked as a law clerk at Stone Law in Colts Neck, NJ, where he assisted in the drafting of litigation documents and Office Actions with the United States Patent and Trademark Office.
United States Magistrate Judge Leslie G. Foschio dismissed the plaintiff’s motion to compel defendant to meet and confer on ESI protocol for the defendant’s predictive coding due to the fact that the defendant was willing to meet with the plaintiff and their respective ESI consultants, minus any consultants that had previously worked on the the defendant’s case against the plaintiffs. And, while it was necessary for Judge Foschio to make a judgment on this issue, the more essential question concerning what is required to be disclosed by a producing party when using predictive coding for ESI production is still left unanswered. Gordon, et. al. v. Kaleida Health, et. al., concerns employees filing suit, under the Fair Labor Standards Act (FLSA), against the employer for unpaid wages and overtime pay. The parties had been in discussions about how to review the defendant’s large volume of e-mails (between 200,000-300,000) for over a year, using key-word search methodology, but to no avail. On June 27, 2012, the court requested the parties’ joint or individual protocols to be implemented for the ESI production. When neither party presented protocol, the court ordered the completion of ESI discovery by October 23, 2012, and non-ESI discovery by January 23, 2013. On September 7, 2012, after communication back and forth, the defendant emailed the plaintiff notifying them that the defendant planned on using predictive coding and informing the plaintiff that the defendant would not participate in discussions establishing protocol with the plaintiff’s ESI consultants. Although, the plaintiff requested a discussion of protocol to be used for assuring successful search methods in the defendant’s predictive coding, on September 25, 2013, the defendant sent the plaintiff its ESI protocol and stated that they would subsequently send a list of the defendants’ email custodians. On October 1, 2013, the plaintiff sent a letter objecting to the defendant’s ESI protocol and noting issues that needed to be discussed and resolved between the two parties, and their respective ESI consultants, prior to the implementation of the defendant’s predictive coding. The plaintiff then filed a Motion to Compel, along with a Memorandum of Law In Support, for the defendant to engage in ESI protocol discussions with both parties’ ESI consultants present, and, if no agreement was reached, for both parties to submit their respective protocols to the court for a ruling as to which should be adopted. On October 16, 2012, the defendants filed an Attorney Declaration in Opposition To Motion To Compel ESI Meet and Confer and a Memorandum of Law in Opposition in which the plaintiffs filed a Reply Memorandum of Law. The plaintiffs relied heavily on Moore v. Publicis Groupe & MLS Group, 287 F.R.D. 182 (S.D.N.Y. 2009) in their memorandums, in asserting that parties intending to use predictive coding for producing ESI, are required to discuss and agree on a protocol to guide the production of documents. Predictive coding allows for a party to “train” the computer software to search for any and all relevant ESI found on the respective computer/hard drive, by feeding the computer a number of “seed set documents.” The software uses the “seed set documents” as a template of what the parties want produced for further examination pending trial. And, while the court in Moore stated that “cooperation” and “transparency” was necessary “in all aspects of preservation and production of ESI,” the plaintiffs in this case seem to take the Moore ruling a step further by attempting to compel the defendants to not only cooperate with ESI protocol discussions, but also to provide the plaintiff with the “seed set documents” the defendant planned on using for predictive coding. The defendants clarified that there was never an issue with meeting and conferring with Plaintiff on discussing an agreed-upon ESI protocol; however, the plaintiff’s ESI consultants that had previously provided services to the defendant in this case were to be excluded and disqualified from the parties’ protocol discussions. Furthermore, the defendant relied on the general principle that the producing party has “sound discretion” in ESI production, to contest the the plaintiff’s assertion that the court should order parties to agree on specific protocol in guiding the defendant’s predictive coding. And in response to the plaintiff’s reliance on Moore, the defendant pointed out that the court did not require the defendants in that case to provide the plaintiffs with the “seed set documents,” but rather, the defendants volunteered the documents used in their production search method. Given the fact that the defendant was willing to meet and confer with the plaintiffs and the plaintiffs’ ESI consultants, the court did not find it necessary to compel the defendant to do so. Since the defendant’s Attorney Declaration stated that the defendant was aware of its discovery obligations under Local R.Civ. P. 26(f)(3) (parties must attempt to reach an agreement on ESI discovery) and Fed.R.Civ.P. 34 (courts can find a producing parties search unreasonable and noncompliant with its production duties), Magistrate Judge Foschio did not find it necessary to remind the defendant of the possible considerations concerning their use of predictive coding. The plaintiff’s motion was dismissed without prejudice, having made clear that a requesting party must omit all ESI consultants from meet and confers that have previously serviced a producing party on the same case, if requested to do so; however, the question left unanswered is what is required to be disclosed to the requesting party when the producing party is using predictive coding and “seed set documents” to gather ESI production.