|
Today, multiple organizations are
forming to develop knowledge standards respective to the field of electronic
discovery. These organizations are seeking to define a baseline aptitude to
independently gauge a technologist grasp of the core technology components
involved different systems involved in electronic discovery process. More importantly, these organizations are
reacting to the critical need to develop, implement, and maintain general standards
and quality controls over electronic discovery.
In the absence of such standards, the e-discovery process will remain
fraught with uncertainty, and attorneys often will have no choice but to
practice “defensive discovery,” much like doctors often practice “defensive
medicine,” in order to avoid the risk of being second-guessed by a client, an
adversary, or the court. Engaging in
defensive discovery, however, inevitably prolongs litigation and can drive up
costs. Standards would help resolve the
problem by giving practitioners, clients, and courts a roadmap as to what
generally constitutes appropriate and reasonable discovery. While the merits of
developing a standard setting body are manifest, developing such standards for
the e-discovery process is not easy.
E-discovery exists at the cross-section of two very different and
complicated knowledge fields – the fields of technology and law – with a touch
of some common sense.
It is a truism that most
attorneys have little interest in becoming technologists, and technologists
have little interest in becoming lawyers.
Yet, to be truly effective at e-discovery, one is required to be both, exercising
both the right brain and the left brain. Expertise in technology without the requisite
grounding the in law will render the best and brightest technologists
ineffective at worst and marginally useful at best in solving complex
e-discovery issues. Similarly, legal
scholars that lack aptitude for technology, and real-world experience in
information technology, will experience similar unhappy results. Thus, the web of knowledge required to fashion
effective base line standards requires collaboration between technical and
legal standard bodies.
Today, the standard setting
bodies in the electronic discovery space are laden with legal practitioners and
practice support managers. This is not
to discount the value that is realized by consulting lawyers who
well-understand the basics of discovery.
Their input is both necessary and appreciated, for only experienced
legal practitioners understand how the Federal Rules of Procedure apply in the
real-world setting of active and contentious litigation, and only they can formulate
standards with that experience in mind.
However, for standard setting efforts to realize their full potential,
more input must be sought from those individuals experienced in technology and
the technical standard setting process.
Only computer scientists and technologists, who have real-world experience
deploying enterprise technology systems, will have the necessary understanding
of the key limitations or general issues that apply to the systems and software
that must be searched as part of any e-discovery process.
In promulgating the Rules of
Procedure governing electronic discovery, the Judicial Conference Committee on
Rules of Practice, Procedure, and Evidence (Standing Committee) recognized the
importance that technologists would have on the e-discovery process. Thus, the Federal Rules of Procedure strongly
encourage the parties to consider electronic information and the technical
issues attendant to production of electronic information from the very start of
litigation. In a similar manner, standard
setting bodies must recognize and consider technical issues from the very start
of their standard-setting process. Any
organization involved in trying to provide e-discovery standards should broadly
seek the input of technologists most experienced with these issues. Unfortunately, the required emphasis on
technology is rarely a large enough part of the standard-setting process.
It is axiomatic that, until one
is battle-tested, all is mere theory. In
e-discovery, it is fundamental that basic standards reflect the experiences of,
and are blessed by, both lawyers and technologists who have the necessary
experience in such specialized areas of expertise as data processing, case
management, and archiving. The failure
to do so will lead to standards that, while impressive on paper, risk failing
the real world test.
Only registered users can write comments.
Please login or register. |
