Money pours into e-discovery. Courts rule on it. Lawyers debate it. Seemingly missing though are statistics.
Is e-discovery and document review today all that different from litigation support 20 years ago? Sure, technology has changed. The underlying process, however, has not. The biggest difference is the volume of data.
There’s a field dedicated to dealing with high data volumes: statistics. EDD debates rarely includes a serious discussion about statistically valid sampling and comparisons of review approaches.
If the US system of litigation had a mechanism to pay for statisticians to assess alternative approaches to e-discovery an document review, I suspect EDD discussions – and judicial decisions – would be very different.
The February 9-13, 2008 Georgetown Law E-Discovery Training Academy has an outstanding faculty and well-conceived syllabus. As I read the session descriptions, I don’t see that statistics will enter the discussion. I hope that future e-discovery training programs will include a session devoted to statistics.
As a one-time econometrician (statistical economist), I think litigators should have enough knowledge to make an informed decision about whether statistics would help manage the EDD and review process. If lawyers doing EDD were pilots, including stats is not like making the leap from visual to instrument flight rules. It’s more like flying with your eyes open rather than closed.