Over at the EDD Update blog, there is a very good discussion of defensible EDD / ESI search. It’s worth reading and prompts me to ask what we mean by reasonable.
Eric Mandel of Zelle Hofmann posted Searching for the Definitive “Search” Tool on July 23, 2009. As of now, there are comments by Herbert Roitblat, Craig Ball, Tom O’Connor, Eric (in rebutal), and Chris Spizzirri. This is one of the more interesting dialogues I’ve read on e-discovery in sometime. (The discussion gets a bit heated in places but I ignored the polemics.)
Eric suggests the current discovery system is broken, that humans are not reliable reviewers, that machines may not be reliable, that the introduction of statistics may confound matters, and concludes that “So the question remains, how do we find a definitive search tool that is affordable, manageable and defensible in 94 district courts, never mind who knows how many state courts? ”
The comments all discuss what makes e-discovery defensible and are worth reading. My take away of the comments is that a “reasonableness” standard will prevail, though one is left with the question of just what is reasonable.
I do find it hard to anticipate what courts will consider reasonable or defensible. For example, lawyers assume that lawyers must review documents. Why? I know of instances where paralegals have reviewed documents. And I’ve not found any lawyer or lit supp professional who can point to legal authority requiring that lawyers be the ones to review documents. It’s possible that some community college grads with a few days of doc review training could do as good if not better job than some contract lawyers. Of course, I don’t know any lawyers who would risk using non-lawyers in a doc review, even if they had test results showing no statistical difference in review designations between lawyers and non-lawyers.
My more general point is that I have a hard time believing in a standard of reasonableness in a system with unstated and untested assumptions. Is it fair to say that reasonableness in doc review is judged primarily (solely?) by prior practice rather than by any objective standard? And, if so, is that a good way of approaching the definition of reasonable?