eDiscovery Daily Blog
eDiscovery Standards: Does the Industry Need Them?
eDiscovery Daily recently ran a three part series analyzing eDiscovery cost budgeting. Cost has long been a driving force in eDiscovery decision-making, but it is just one dimension in choosing EDD services. Other industries have well-established standards for quality – think of the automotive or software industries, which have standard measures for defects or bugs. This year there has been a rising call for developing industry standards in eDiscovery to provide quality measures.
There is a belief that eDiscovery is becoming more routine and predictable, which means standards of service can be established. But is eDiscovery really like manufacturing? Can you assess the level of service in EDD in terms of number of defects? Quality is certainly a worthy aim – government agencies have shifted away from cost being the single biggest justification for contract award, more heavily weighting quality of service in such decisions. The question is how to measure quality in EDD.
Quality standards that offer some type of objective measures could theoretically provide another basis for decision-making in addition to cost. Various attempts have been made at creating industry standards over the years, very little has yet been standardized. The recent DESI (Discovery of Electronically Stored Information) IV workshop at the International Conference on Artificial Intelligence and Law in June investigated possible standards. In the background to the conference, organizers bemoaned that “there is no widely agreed-upon set of standards or best practices for how to conduct a reasonable eDiscovery search for relevant evidence.”
Detractors say standards are just hoops for vendors to jump through or a checkbox to check that don’t do much to differentiate one company from another. However, proponents believe industry standards could define issues like document defensibility, defining output, or how to go about finding responsive documents in a reasonable way, issues that can explode if not managed properly.
The Sedona Conference, Electronic Discovery Reference Model (EDRM), and Text Retrieval Conference (TREC) Legal Track all have efforts of one kind or another to establish standards for eDiscovery. EDRM provides a model for eDiscovery and standards of production. It has also led an effort to create a standard, generally accepted XML model to allow vendors and systems to more easily share electronically stored information (ESI). However, that applies to software vendors, and really doesn’t help the actual work of eDiscovery.
The Sedona Commentary on Achieving Quality in eDiscovery calls for development of standards and best practices in processing electronic evidence. Some of the standards being considered for broad industry standards are the ISO 9000 standard, which provides industry-specific frameworks for certifying organizations or the Capability Maturity Model Integration (CMMI), centered around improving processes.
The Association for Information Management Professionals (ARMA) is pushing its Generally Accepted Record-keeping Principles (GARP) framework to provide best practices for information management in the eDiscovery context. This article from ARMA is dismissive of information governance efforts such as the EDRM, which it says provides a framework for eDiscovery projects, but “falls short of describing standards or best practices that can be applied to the complex issues surrounding the creation, management, and governance of electronic information.”
Meanwhile, there are efforts underway to standardize pieces of the eDiscovery process. Law.com says that billing code standards are in the works to help clients understand what they are buying when they sign a contract for eDiscovery services.
Perhaps the most interesting and important effort is the TREC Legal Track, which began as government research project into improving search results. The project garnered a fair amount of attention when it discovered that keyword searching was as effective as or better than many advanced concept searches and other technology that was becoming popular in the industry. Since that time, researchers have been trying to develop objective criteria for comparing methods for searching large collections of documents in civil litigation.
As of today, these efforts are largely unrelated, disjointed, or even dismissive of competing efforts. In my next post, I’ll dig into specific efforts to see if any make sense for the industry. So, what do you think? Are standards needed, or is it just a lot of wheel spinning? Please share any comments you might have or if you'd like to know more about a particular topic.
Editor's Note: Welcome Jason Krause as a guest author to eDiscovery Daily blog! Jason is a freelance writer in Madison, Wisconsin. He has written about technology and the law for more than a dozen years, and has been writing about EDD issues since the first Zubulake decisions. Jason began his career in Silicon Valley, writing about technology for The Industry Standard, and later served as the technology reporter for the ABA Journal. He can be reached at email@example.com.
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