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Idealistic musings about eDiscovery
Here’s a worthy reminder from Amy Bowser-Rollins of the need to maintain chain of custody logs while collecting eDiscovery. With all the emphasis these days on TAR, it’s nice to be reminded of the fundamentals every once in a while.
“The man who complains about the way the ball bounces is likely the one who dropped it.” – Lou Holtz
I don’t know if I’m more impressed that the author’s name is “Gary Discovery”, or that the wisdom contained in his note is so cogent, but this author cites a new Pennsylvania case in which the judge presumed ESI to be inaccessible where neither party contended otherwise. In this case, the result was that the costs of production shifted to the requesting party.
The requesting party should submit to the court that the ESI sought is accessible to avoid both a presumption of inaccessibility and the possibility of cost-shifting. Requesting parties should not leave it up to the producing party to bear the burden of showing that the ESI is inaccessible because the courts are now willing to presume this finding if neither party contends otherwise.
Ralph Losey’s e-Discovery Team blog is often highly technical but always interesting. Ralph is one of the (if not the) leading theorist on search and prediction, and he excels at finding simple metaphors to explain his headache-inducing mathematical constructs. (Hey, I was a liberal arts major. I know my intellectual limits.)
In his latest post, Ralph compares Kroll Ontrack’s EDR software to a race car. The far-ranging post is worth a read, if only to get to his final paragraph, of which I agree with every syllable:
What passes as a good faith use of predictive coding by some law firms is a disgrace. Of course, if hide the ball is still your real game of choice, then all of the good software in the world will not make any difference. Keep breaking the law like that and someday you are bound to crash and burn.
Here’s a good post from Philip Favro at Recommind, regarding Judge Peck’s new “hot-button” case dealing with technology-assisted review:
Like King Solomon’s famous mandate to split the baby, the court’s middle ground decree wisely provided each party with a measure of what they requested while also resolving the dispute. By permitting Vale to cull down the document universe with search terms, the court honored the parties’ predictive coding use agreement as Vale had requested. However, the court placated Rio Tinto’s concerns by allowing it to propose search terms that might capture relevant information that might otherwise have been excluded.
Those of you who have been following this dormant blog know that I had been instructed by the Powers That Be at my company to stop blogging if I wanted a chance at promotion. I noted that, the opportunity for promotion having fallen through, I would resume blogging unless my employers directed me otherwise.
Then I fell silent for nearly two years. You can guess what happened.
Well, now my company has decided to eliminate my position, not only releasing me back into the wild to seek new challenges, but also releasing me to begin blogging again! (By the way, if you’re aware of anyone who can benefit from an eDiscovery attorney, consultant, trainer and subject matter expert, please drop me a line.)
So, brace yourselves … because now I’ve got some things to say, and a lot of time available to say it.