We begin with three quick questions:
1. Which legal practice has created and fueled a multibillion-dollar support industry?
2. Which legal practice employs incomprehensible acronyms that require a glossary apart from Black’s Law Dictionary?
3. Which legal practice motivates debates between non-lawyer computer scientists and academics?
If you guessed e-discovery (perhaps because you’re reading an e-discovery post with an e-discovery title on an e-discovery blog), you’re right. And because of the spend associated with this practice, standards might be expected, assuming consensus and agreement within the e-discovery space.
But agreement is especially difficult in e-discovery because of this choice of standards direction: Should they be technology-based in an environment where technologies change rapidly? Or should standards focus on the process used by attorneys who must certify their discovery responses under Federal Rule of Civil Procedure 26(g), but who are less-than-embracing of advice from nonpractitioners, scholars and academics, and litigation support professionals? In the absence of consensus, standards have thus far languished, and there is currently no clear-cut direction in the market.
There is still merit in considering standards for e-discovery as a practice, despite the requirement for attorney sign-off, because e-discovery is a highly technical practice that is only becoming more so. The value of this consideration (and other topics) are addressed in Perspectives on Predictive Coding and Other Advanced Search Methods for the Legal Practitioner, where the authors contributing chapters confronted the challenge of modernity and the understanding that the present-day “legal profession lives and breathes in a world of electronically stored information.”
While we have examined technology assisted review (TAR) and defense of process in the context of specific cases before, in our Perspectives chapter, “A Modest Proposal for Preventing e-Discovery Standards from Being a Burden to Practitioners, Clients, the Courts, or Common Sense,” we took a holistic look at the possible standardization of present and future e-discovery practice in all cases. We also discussed whether technical standards would even be applicable, provided some additional guidance for practitioners within this space, and looked to the future of e-discovery and practice more generally. This discussion began with the present-day “patchwork of ‘best practices’ that has emerged from think tanks, regional judicial pilot projects, and individual judges,” leading us to consider whether standardization was even “possible in the context of procedural rules administered by courts relating to known and not-yet-knowable technological challenges.” In working through this question, we examined standard-setting bodies and their work product, parsing out the reasonable from the unreasonable, and offered a proposal of our own.
Again, standard-setting bodies are not without merit in the e-discovery space, and at the very least may provide a worthwhile checklist for those practitioners signing on the 26(g) line. In general, and as we discuss in the chapter, new e-discovery practitioners and veterans alike should be familiar with the following:
- The Sedona Conference, Georgetown University Law Center’s Advanced eDiscovery Institute and the Duke Law Civil Rules Committee materials (and the court decisions covered by all three).
- The International Organization for Standardization (ISO) and ISO/IEC CD 27050-1:2016 Standard on Information Technology – Security Techniques – Electronic Discovery.
- The Electronic Discovery Reference Model.
- The American Bar Association 2004 Civil Discovery Standards and incorporated e-discovery components.
- The Seventh Circuit’s Electronic Discovery Committee and Pilot Program.
- The Federal Judicial Center generally and its recent guidance on TAR.
- The Civil Litigation Management Manual.
- The Electronic Discovery (ESI) in Bankruptcy Working Group.
- The Coalition of Technology Resources for Lawyers.
After our review and explanation of these and related resources, we offered a checklist set of 10 standard practices, bookended by two “new” considerations for long-time zealous advocates, cooperation and transparency. In particular, we asserted that cooperation was not simply “refraining from abusive practices, but also developing, testing, and agreeing on the nature and scope of information sought (to the extent consistent with clients’ interests).” We also noted that “true cooperation [might] require the use of true expert cooperation, where both parties have experts representing their interests.” For transparency, we considered recent case law that noted that practitioners should be prepared to provide full disclosure about the technology used, the process and the methodology, including those “documents used to ‘train’ the computer” in instances of TAR.
In sum, our proposed checklist focuses on the 26(g) practitioner, but incorporates principles more common to those branches of science and practice that rely on working in concert toward a common goal—in this case, the discovery practices required under the rest of the federal rules.