Planting eDiscovery ideas inch by inch and 
step by step

Every article could cover one more topic, bring in another side-reference, or round out the discussion with another example, parallel or exception.  Sometimes it is best to stick to one core subject.

The continent of Europe is so wide,
 Mein Herr.
Not only up and down, but side to side,
 Mein Herr.
I couldn’t ever cross it if I tried, 
Mein Herr.
So I do..
.
What I can…
Inch by inch..
.
Step by step…
Mile by mile…
Man by man.

I am not sure that Cabaret’s Sally Bowles would make a great role model, but her meticulous approach to getting her arms round something, as described in the song Mein Herr, is spot-on. Take one subject, get everything you can out of it, and move on to the next. it is much easier if you stick to one at a time. With experience, you can perhaps take on more than…. well perhaps I have exhausted the analogy already. I only really wanted the “inch by inch, step by step” bit for my immediate purpose.

My December 23 post Judges and automated coding tools for electronic discovery drew an immediate comment from Joe Howie of Howie Consulting and the e-Discovery Institute. Joe is co-author, with Anne Kershaw of A. Kershaw, P.C. Attorneys & Consultants, of the recent Judges’ Guide to Cost-Effective E-Discovery which, in 25 brisk pages, gives judges an introduction to a subject which many of them find difficult – see its contents page for an idea of what is covered. Deciding what the strict obligations are in relation to electronic discovery generally is hard enough; it is those words “cost-effective” which make it particularly difficult. Any fool of a lawyer can give discovery of everything which might possibly be relevant, and any fool of a judge might let them have it. Similarly, it is easy enough to challenge the other side’s discovery, leaving the judge to decide whether the demands represent an unwarranted tactical pressure or a legitimate demand for evidence – or, indeed, ignorance on the part of both parties. Assessment as to what is easy, what is difficult and what is reasonably practicable at a reasonable cost is required of the judge, and this book aims to help judges in this respect. I was at its launch party in Georgetown in November and the critical reception (in that most critical of audiences) was uniformly positive.

My post was about a podcast which I had recently recorded with Chief US Magistrate Judge Paul Grimm, US Magistrate Judge John Facciola and Maura Grossman of Wachtell, Lipton, Rosen & Katz. Its focus was the extent to which courts would accept technology like clustering and predictive coding as methods of culling the document populations, and we filled our hour without straying too far from the core subject.

Joe’s comment reads as follows:

What’s often missing in the discussion of the defensibility of using new technology is the lack of defensibility of traditional brute force linear review. How defensible is a system that when a second team looks at the same records for the same purposes they select only about half of what the first team did? See the discussion on page 14 of The Judges’ Guide to Cost-Effective E-Discovery, available at no charge from www.eDiscoveryInstitute.org/JudgesGuide

Joe is of course right and (as I recall it) the defects of “brute force linear review” were mentioned by Maura. The difficulty is that there is only so much that you can fit into an hour, and audiences can only take in a certain amount at a time, however interested in the subject. The flaws in linear review have formed the basis for many detailed and learned studies, of which the one referred to on page 14 of the Judges’ Guide is perhaps the best known. In any event, however enthusiastic I am for much of the new technology, and however much I urge lawyers to be aware of everything out there, I personally am not ready to condemn any form of electronic review whilst so many lawyers are still blindly pressing “Print”. Joe, like me, is merely suggesting a comparative analysis. There are too many variables – in scale, in skill, in budget – to try and compress the arguments into a small corner of a discrete subject discussion.

All these subjects are interlocked: we mentioned the ethical dilemmas which can arise, but merely scratched the surface of this important subject; judicial education, the proper scope of sanctions orders for breaches of duty, certification of those who claim e-discovery expertise, the respective merits of one type of technology over another (and, indeed, of rival providers’ applications), the conflict between duty to client and duty to the court, questions of proportionality – these are all examples of subjects which are close to our chosen subject and yet warrant whole podcasts in themselves.

I occasionally field suggestions that something I have written paid inadequate attention to some related subject. I am usually unrepentant, generally because I would have made a deliberate election to stick to the narrow topic indicated by my heading. Just occasionally, I recognise that an omission upsets the balance or the logic of an article, and edit accordingly.

In a sense, it was implicit in our discussion about clustering and predictive coding that more traditional means of culling and reviewing document populations are flawed, and I think we would have lost the thread, and our audience, if we had done more than referred in passing to the arguments about document-by-document review. That said, Joe Howie is not wrong to remind us that the shortcomings are a matter of statistical record and not merely an assertion made by those with more sophisticated systems to offer.

So I do…
What I do…
When I’m through…
Then I’m through…
And I’m through…
Toodle-oo!

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure, Judges, Litigation Support. Bookmark the permalink.

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