Standards and Guidelines for E-Discovery
E-discovery (the process of finding and disclosing electronic evidence in litigation) has become a sizable industry. But the industry has emerged so quickly that e-discovery work is anything but uniform. Performance of e-discovery work is evaluated largely on an ad hoc basis. To change that, industry leaders have formed a group to set standards and guidelines.
The Electronic Discovery Reference Model pulls together law firms, e-discovery technical practitioners and the vendors of e-discovery and e-archival products. It comprises several projects.
One project is a set of metrics for tracking and measuring e-discovery activities. Metrics can help litigants and courts assess which e-discovery is and is not required. A general principle of e-discovery law is that a party should be required to expend no more than reasonable effort to locate and turn over electronic records. Authoritative metrics can help reveal the difference between reasonable effort and unreasonable effort.
Another EDRM project is crafting a framework for defining and executing searches for electronic documents. Different methods for searching (keyword, concept, heuristic and so on) a given group of records will yield different results. An EDRM search framework could help litigants specify what they expect from e-discovery work and avoid surprise or disappointment after it is performed.
[Background: As the quantity of eDiscovery records soars, sampling of those records will become a more viable search technique. See McPeek v. Ascroff, 202 FRD 31 (DDC 2001), which endorses sampling of old backup tapes as a way to control discovery costs, rather than requiring the defendant to restore all tapes as the plaintiff requested.]
A third project is writing an ethical code of conduct for e-discovery practitioners. This code will help courts and litigants evaluate and gain confidence in the quality of e-discovery work by particular practitioners.
EDRM has the potential to enable future technologies that can contribute discipline, efficiency and reliability to the e-discovery phase of litigation. It can also give the vendors of electronic archival systems direction as they develop products intended to facilitate e-discovery for future litigation. I foresee document search technologies using artificial intelligence and other advanced search analytics.
Mr. Wright is an advisor to Messaging Architects , active member of EDRM.