Formulating A Roadmap For E-Discovery
by Daniel B. Garrie
Today, multiple organizations are forming to develop knowledge standards respective to the field of electronic discovery. These organizations are seeking to define a baseline aptitude to independently gauge a technologist grasp of the core technology components involved in the different systems forming the electronic discovery process. More importantly, these organizations are reacting to the critical need to develop, implement, and maintain general standards and quality controls over electronic discovery.
In the absence of such standards, the e-discovery process will remain fraught with uncertainty, and attorneys often will have no choice but to practice “defensive discovery,” much like doctors often practice “defensive medicine,” in order to avoid the risk of being second-guessed by a client, an adversary, or the court. Engaging in defensive discovery, however, inevitably prolongs litigation and can drive up costs.
Standards would help resolve the problem by giving practitioners, clients, and courts a roadmap as to what generally constitutes appropriate and reasonable discovery. While the merits of developing a standard setting body are manifest, developing such standards for the e-discovery process is not easy. E-discovery exists at the cross-section of two very different and complicated knowledge fields – the fields of technology and law – with a touch of common sense.
It is a truism that most attorneys have little interest in becoming technologists, and technologists have little interest in becoming lawyers. Yet, to be truly effective at e-discovery, one is required to be both, exercising the right brain and the left brain. Expertise in technology without the requisite grounding in law will render the best and brightest technologists ineffective at worst and marginally useful at best in solving complex e-discovery issues. Similarly, legal scholars that lack aptitude for technology, and real-world experience in information technology, will experience similar unhappy results. Thus, the web of knowledge required to fashion effective base line standards requires collaboration between technical and legal standard bodies.
Today, the standard setting bodies in the electronic discovery space are laden with legal practitioners and practice support managers. This is not to discount the value that is realized by consulting lawyers who well-understand the basics of discovery. Their input is both necessary and appreciated, for only experienced legal practitioners understand how the Federal Rules of Procedure apply in the real-world setting of active and contentious litigation, and only they can formulate standards with that experience in mind.
However, for standard setting efforts to realize their full potential, more input must be sought from those individuals experienced in technology and the technical standard setting process. Only computer scientists and technologists, who have real-world experience deploying enterprise technology systems, will have the necessary understanding of the key limitations or general issues that apply to the systems and software that must be searched as part of any e-discovery process.
In promulgating the Rules of Procedure governing electronic discovery, the Judicial Conference Committee on Rules of Practice, Procedure, and Evidence (Standing Committee) recognized the importance that technologists would have on the e-discovery process. Thus, the Federal Rules of Procedure strongly encourage the parties to consider electronic information and the technical issues attendant to production of electronic information from the very start of litigation. In a similar manner, standard setting bodies must recognize and consider technical issues from the very start of their standard-setting process. Any organization involved in trying to provide e-discovery standards should broadly seek the input of technologists most experienced with these issues. Unfortunately, the required emphasis on technology is rarely a large enough part of the standard-setting process.
It is axiomatic that, until one is battle-tested, all is mere theory. In e-discovery, it is fundamental that basic standards reflect the experiences of, and are blessed by, both lawyers and technologists who have the necessary experience in such specialized areas of expertise as data processing, case management, and archiving. The failure to do so will lead to standards that, while impressive on paper, risk failing the real world test.