July/August 2009 / E-Discovery
Employ a Reasonable Method, Know Its Limits
For a brief period, with the advent of electronically stored information, or “ESI,” it seemed that discovery might get simpler and cheaper. The opposite has occurred, because at the same time it became easier to access information it also became easier to keep it. All kinds of it. “In effect,” the author says, “we are in an arms race.”
Identifying keywords is one way to narrow the scope of discovery, and negotiating keywords is a common step in the litigation process. But keywords can be both over and under-inclusive, and recent court decisions, as well as a new federal rule of evidence, have underscored the need for more effective protocols. Many commercially available products claim to address the e-discovery problem, but the author warns that often they are adaptations of business process software and may not be suitable for litigation-related search.
The intractability of the problem suggests two practical conclusions. The first is that practitioners need to disclose and be prepared to defend whatever system they use. The second, the author says, is that “cooperation and compromise between adversaries to arrive at mutually acceptable search protocols is more important than ever.”