Sedona Conference

eDiscovery Trends: Jason R. Baron

 

This is the first of the Holiday Thought Leader Interview series.  I interviewed several thought leaders to get their perspectives on various eDiscovery topics.

Today’s thought leader is Jason R. Baron. Jason has served as the National Archives' Director of Litigation since May 2000 and has been involved in high-profile cases for the federal government. His background in eDiscovery dates to the Reagan Administration, when he helped retain backup tapes containing Iran-Contra records from the National Security Council as the Justice Department’s lead counsel. Later, as director of litigation for the U.S. National Archives and Records Administration, Jason was assigned a request to review documents pertaining to tobacco litigation in U.S. v. Philip Morris.

He currently serves as The Sedona Conference Co-Chair of the Working Group on Electronic Document Retention and Production. Baron is also one of the founding coordinators of the TREC Legal Track, a search project organized through the National Institute of Standards and Technology to evaluate search protocols used in eDiscovery. This year, Jason was awarded the Emmett Leahy Award for Outstanding Contributions and Accomplishments in the Records and Information Management Profession.

You were recently awarded the prestigious Emmett Leahy Award for excellence in records management. Is it unusual that a lawyer wins such an award? Or is the job of the litigator and records manager becoming inextricably linked?

Yes, it was unusual: I am the first federal lawyer to win the Emmett Leahy award, and only the second lawyer to have done so in the 40-odd years that the award has been given out. But my career path in the federal government has been a bit unusual as well: I spent seven years working as lead counsel on the original White House PROFS email case (Armstrong v. EOP), followed by more than a decade worrying about records-related matters for the government as Director of Litigation at NARA. So with respect to records and information management, I long ago passed at least the Malcolm Gladwell test in "Outliers" where he says one needs to spend 10,000 hours working on anything to develop a level of "expertise."  As to the second part of your question, I absolutely believe that to be a good litigation attorney these days one needs to know something about information management and eDiscovery — since all evidence is "born digital" and lots of it needs to be searched for electronically. As you know, I also have been a longtime advocate of a greater linking between the fields of information retrieval and eDiscovery.

In your acceptance speech you spoke about the dangers of information overload and the possibility that it will make it difficult for people to find important information. How optimistic that we can avoid this dystopian future? How can the legal profession help the world avoid this fate? 

What I said was that in a world of greater and greater retention of electronically stored information, we need to leverage artificial intelligence and specifically better search algorithms to keep up in this particular information arms race. Although Ralph Losey teased me in a recent blog post that I was being unduly negative about future information dystopias, I actually am very optimistic about the future of search technology assisting in triaging the important from the ephemeral in vast collections of archives. We can achieve this through greater use of auto-categorization and search filtering methods, as well as a having a better ability in the future to conduct meaningful searches across the enterprise (whether in the cloud or not). Lawyers can certainly advise their clients how to practice good information governance to accomplish these aims.

You were one of the founders of the TREC Legal Track research project. What do you consider that project’s achievement at this point?

The initial idea for the TREC Legal Track was to get a better handle on evaluating various types of alternative search methods and technologies, to compare them against a "baseline" of how effective lawyers were in relying on more basic forms of keyword searching. The initial results were a wake-up call, in showing lawyers that sole reliance on simple keywords and Boolean strings sometimes results in a large quantity of relevant evidence going missing. But during the half-decade of research that now has gone into the track, something else of perhaps even greater importance has emerged from the results, namely: we have a much better understanding now of what a good search process looks like, which includes a human in the loop (known in the Legal Track as a topic authority) evaluating on an ongoing, iterative basis what automated search software kicks out by way of initial results. The biggest achievement however may simply be the continued existence of the TREC Legal Track itself, still going in its 6th year in 2011, and still producing important research results, on an open, non-proprietary platform, that are fully reproducible and that benefit both the legal profession as well as the information retrieval academic world. While I stepped away after 4 years from further active involvement in the Legal Track as a coordinator, I continue to be highly impressed with the work of the current track coordinators, led by Professor Doug Oard at the University of Maryland, who was remained at the helm since the very beginning.

To what extent has TREC’s research proven the reliability of computer-assisted review in litigation? Is there a danger that the profession assumes the reliability of computer-assisted review is a settled matter?

The TREC Legal Track results I am most familiar with through calendar year 2010 have shown computer-assisted review methods finding in some cases on the order of 85% of relevant documents (a .85 recall rate) per topic while only producing 10% false positives (a .90 precision rate). Not all search methods have had these results, and there has been in fact a wide variance in success achieved, but these returns are very promising when compared with historically lower rates of recall and precision across many information retrieval studies. So the success demonstrated to date is highly encouraging. Coupled with these results has been additional research reported by Maura Grossman & Gordon Cormack, in their much-cited paper Technology-Assisted Review in EDiscovery Can Be More Effective and More Efficient Than Exhaustive Manual Review, which makes the case for the greater accuracy and efficiency of computer-assisted review methods.

Other research conducted outside of TREC, most notably by Herbert Roitblat, Patrick Oot and Anne Kershaw, also point in a similar direction (as reported in their article Mandating Reasonableness in a Reasonable Inquiry). All of these research efforts buttress the defensibility of technology-assisted review methods in actual litigation, in the event of future challenges. Having said this, I do agree that we are still in the early days of using many of the newer predictive types of automated search methods, and I would be concerned about courts simply taking on faith the results of past research as being applicable in all legal settings. There is no question however that the use of predictive analytics, clustering algorithms, and seed sets as part of technology-assisted review methods is saving law firms money and time in performing early case assessment and for multiple other purposes, as reported in a range of eDiscovery conferences and venues — and I of course support all of these good efforts.

You have discussed the need for industry standards in eDiscovery. What benefit would standards provide?

Ever since I served as Co-Editor in Chief on The Sedona Conference Commentary on Achieving Quality in eDiscovery (2009), I have been thinking that the process for conducting good eDiscovery. That paper focused on project management, sampling, and imposing various forms of quality controls on collection, review, and production. The question is, is a good eDiscovery process capable of being fit into a maturity model of sorts, and might be useful to consider whether vendors and law firms would benefit from having their in-house eDiscovery processes audited and certified as meeting some common baseline of quality? To this end, the DESI IV workshop ("Discovery of ESI") held in Pittsburgh last June, as part of the Thirteenth International AI and Law Conference (ICAIL 2011), had as its theme exploring what types of model standards could be imposed on the eDiscovery discipline, so that we all would be able to work from some common set of benchmarks, Some 75 people attended and 20-odd papers were presented. I believe the consensus in the room was that we should be pursuing further discussions as to what an ISO 9001-type quality standard would look like as applied to the specific eDiscovery sector, much as other industry verticals have their own ISO standards for quality. Since June, I have been in touch with some eDiscovery vendors have actually undergone an audit process to achieve ISO 9001 certification. This is an area where no consensus has yet emerged as to the path forward — but I will be pursuing further discussions with DESI workshop attendees in the coming months and promise to report back in this space as to what comes of these efforts.

What sort of standards would benefit the industry? Do we need standards for pieces of the eDiscovery process, like a defensible search standard, or are you talking about a broad quality assurance process?

DESI IV started by concentrating on what would constitute a defensible search standard; however, it became clear at the workshop and over the course of the past few months that we need to think bigger, in looking across the eDiscovery life cycle as to what constitutes best practices through automation and other means. We need to remember however that eDiscovery is a very young discipline, as we're only five years out from the 2006 Rules Amendments. I don't have all the answers, by any means, on what would constitute an acceptable set of standards, but I like to ask questions and believe in a process of continuous, lifelong learning. As I said, I promise I'll let you know about what success has been achieved in this space.

Thanks, Jason, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

eDiscovery Trends: Sedona Conference Provides Guidance for Judges

 

Last month, The Sedona Conference® made a public comments version of the Cooperation Proclamation: Resources for the Judiciary available on the Sedona Conference website. The Sedona Conference Cooperation Proclamation has set a non-trivial goal- to teach the profession to collaborate during the discovery process instead of the traditional gladiatorial style of litigation. The Resources for the Judiciary document aims to provide judges with a foundation for creating a collaborative and non-adversarial approach to managing eDiscovery.

The Cooperation Proclamation was published in 2008 and is a short document that argues that if lawyers work together during the discovery phase, the merits of the underlying dispute are more likely to get a fair hearing. Specifically, it calls on lawyers to "work more collaboratively during the discovery phase so that greater time and attention (and money) can be spent on litigating the merits of the underlying dispute." 

The Resources for the Judiciary distinguishes between “active case management” and “discovery management.” The former can be characterized as a proactive and the latter as a reactive judicial approach to managing discovery. While offering guidance for both approaches, the proclamation urges judges to take an active case management model approach. That is not to say that judges should make decisions for parties, but to provide “a clear set of expectations designed to move the evidence-gathering phase of the litigation forward in a speedy and inexpensive way, without the cost, delay, and gamesmanship associated with unmanaged discovery.”

The Resources for the Judiciary is a detailed and practical document, providing a practical “toolkit” to train and support judges in techniques of discovery cooperation, collaboration, and transparency. It is organized by common stages of discovery disputes from a judge’s perspective. Eighteen issue areas are listed, beginning with preservation and continuing through topics like choosing search methodology and ending with everyone’s least favorite issue, sanctions. Each topic area lists the Federal Rule that applies to any given topic, an explanation of the issue, and practical guidance for achieving successful resolution of disputes. Each section includes detailed guidance in the form of current case law and examples of orders from the bench.  

The Resources make the following recommendations:

  • Judges should adopt a “hands-on” approach to case management early in each action;
  • Judges should establish deadlines and keep parties to those guidelines (or make reasonable adjustments) with periodic status reports or conferences;
  • Judges should encourage the parties to meet before discovery commences to develop a realistic discovery plan;
  • Judges should encourage proportionality in preservation demands and expectations and in discovery requests and responses;
  • Judges should exercise their discretion to limit or condition disproportionate discovery and shift disproportionate costs;
  • If necessary, judges should exercise their authority to issue sanctions under the relevant statutes, rules, or the exercise of inherent authority on counsel or parties who create unnecessary costs or delay, or who otherwise frustrate the goals of discovery by “gaming the system”.

The Sedona Conference has acknowledged that cooperation is contrary to the adversarial instincts lawyers have been taught, and that it will require a generational shift for the nature of litigation to change. But there is perhaps no better way to encourage lawyers to cooperate than to create and active and informed judiciary on eDiscovery issues.

To submit a public comment, you can download a public comment form here, complete it and fax (yes, fax) it to The Sedona Conference® at 928-284-4240.  You can also email a general comment to them at tsc@sedona.net.

So, what do you think?  Can guidance like this help prevent intractable discovery disputes? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Changes in Store for The Sedona Conference

 

One of the most influential organizations in eDiscovery is The Sedona Conference® (TSC), a Arizona-based non-profit, non-partisan law and policy think tank that has made numerous contributions to the industry since it was founded in 1997.  Some of the most recent contributions have been documented in this blog, including a commentary on proportionality released last year and database principles released earlier this year.

A couple of weeks ago, TSC announced that its Board of Directors “has adopted a new collaborative management structure designed to align the organization’s administration with its historical mission of dialogue and consensus building” and said that founder and former executive director Richard Braman is now its full-time chairman.  There will now be four Director-level positions, as follows:

  • Business Operations: Dustin McKissen is the new director of business operations, and previously was deputy CEO of the National Association for Information Destruction,
  • Conferences and Content: Howard Bergman joins as director of conferences and content, but will continue serving as counsel in residence at the University of Minnesota Law School,
  • Judicial Outreach: John Rabieg, previously appointed as executive director on Jan. 31, will move to become director of judicial outreach,
  • Judicial Education: Kenneth Withers, a member of Sedona since 2006 as director of judicial education and content, will narrow his focus to just the education component.

These four Director-level positions will now manage the affairs of TSC in a collaborative manner, reporting to an Executive Committee of the Board of Directors.  They will be formally announced at a Sept. 24 dinner in Washington, D.C.

As noted on their press release of August 29: “’The Sedona Conference’s success, right from the very start, has been based on creating intellectually stimulating and thought-provoking dialogue and content through collaboration by judges, lawyers, experts and academics,’ said Craig Weinlein, a member of The Sedona Conference® Board of Directors and a partner at Carrington Coleman Sloman & Blumenthal in Dallas. ‘Because of our growth in staff, activities, and influence, now are the right time to bring that dialogue-based, consensus building process to our business operations, in order to best maintain the quality of The Sedona Conference’s unique and highly successful efforts.’”

TSC now has nine Working Groups and presents ten to twelve conferences each year, focusing on “tipping point” issues in the areas of complex litigation, antitrust and intellectual property rights.  It will be interesting to see what impact the new management structure will have on the activities of the group.

So, what do you think?  Do you think this is a good move for TSC?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Same Old Story, Lawyers Struggling to “Get” eDiscovery

 

A couple of days ago, Law Technology News (LTN) published an article entitled Lawyers Struggle to Get a Grasp on E-Discovery, by Gina Passarella, via The Legal Intelligencer.  Noting that “[a]ttorneys have said e-discovery can eat up between 50 to 80 percent of a litigation budget”, the article had several good observations and quotes from various eDiscovery thought leaders, including:

  • Cozen O'Connor member David J. Walton, co-chairman of the firm's eDiscovery task force, who observed that “I'm afraid not to know [eDiscovery] because it dominates every part of a case”;
  • LDiscovery General Counsel Leonard Deutchman, who noted that the younger generation comfortable with the technology will soon be the judges and attorneys handling these matters, asked the question “what happens to those people that never change?”.  His answer: “They die.”
  • K&L Gates eDiscovery analysis and technology group Co-Chairman Thomas J. Smith noted that “A lot of the costs in e-discovery are driven by paranoia because counsel or the party themselves don't really know the rules and don't know what the case law says”.
  • Morgan Lewis & Bockius partner Stephanie A. "Tess" Blair heads up the firm's e-data practice and hopes that in five years eDiscovery will become more routine, noting “I think we're at the end of the beginning”.
  • Dechert's e-discovery practice guru Ben Barnett said, “Technology created the problem, so technology needs to solve it.”  But, David Cohen, the head of Reed Smith's eDiscovery practice, said that the increasing amount of data sources are keeping ahead of that process, saying “You have to make improvements in how you handle it just to tread water in terms of cost”.

There are several other good quotes and observations in the article, linked above.

On the heels of Jason Krause’s two part series on this blog regarding the various eDiscovery standards organizations, and the controversy regarding eDiscovery certification programs (referenced by this post regarding the certification program at The Organization of Legal Professionals), where do attorneys turn for information?  How do attorneys meet the competency requirements that the American Bar Association (ABA) Model Rules set forth, when an understanding of eDiscovery has become an increasing part of those requirements?

One common denominator of the firms quoted above is that they all have one or more individuals focused on managing the eDiscovery aspect of the cases in which they’re involved.  Having an eDiscovery specialist (or a team) can be a key component of effectively managing the discovery process.  If you’re a smaller firm and cannot devote a resource to managing eDiscovery, then find a competent provider that can assist when needed.

In addition to identifying an “expert” within or outside the firm, there are so many resources available for self-education that any attorney can investigate to boost their own eDiscovery “savvy”.  Join one of the standards organizations referenced in the two part series above.  Or, participate in a certification program.

One method for self-education that attorneys already know is case law research – while there is always variety in how some of the issues are handled by different courts, case decisions related to eDiscovery can certainly identify risks and issues that may need to be addressed or mitigated.  Subscribing to one or more resources that publish eDiscovery case law is a great way to keep abreast of developments.  And, I would be remiss if I didn’t note that eDiscovery Daily is one of those resources – in the nearly 11 month history of this blog, we have published 43 case law posts to date.  More to come, I’m sure… 😉

So, what do you think? Do you have a game plan for “getting” eDiscovery?  Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Standards: How Does an Industry Get Them?

 

As discussed yesterday, there is a nascent, but growing, movement pushing for industry standards in eDiscovery. That’s something many litigators may chafe at, thinking that standards and industry benchmarks impose checklists or management processes that tell them how to do their job. But industry standards, when implemented well, provide not only a common standard of care, but can help provide a point of comparison to help drive buying decisions.

It’s probably understandable that many of the calls for standards today focus on the search process. Judge Shira Scheindlin wrote in Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC that a party’s “failure to assess the accuracy and validity of selected search terms” was tantamount to negligence.  As mentioned yesterday, the Text Retrieval Conference TREC Legal Track has been benchmarking different search strategies, even finding ways to optimize the search process. The ultimate goal is to provide baseline standards and guidelines to allow parties to determine if they are being successful in searching electronically stored information in litigation.

Within these technical discussions a new emerging thread is a call for ethical standards and codes of conduct. Jason Baron, National Archives' Director of Litigation and one of the coordinators of the TREC Legal Track, organized the SIRE workshop that concluded last week, focused on information retrieval issues in large data sets. However, even he, who has been working on optimizing search technology, recognizes the need for standards of care and ethics in eDiscovery to manage the human element. In a paper released earlier this year, he noted, “While there are no reported cases discussing the matter of ‘keyword search ethics,’ it is only a matter of time before courts are faced with deciding difficult issues regarding the duty of responding parties and their counsel to make adequate disclosures.”

The leading provider of industry standards is the Electronic Discovery Resource Model (EDRM), which has a number of projects and efforts underway to create common frameworks and standards for managing eDiscovery. Many of the EDRM’s ongoing projects are aimed at creating a framework, and not standards. In addition to the EDRM Framework familiar to many eDiscovery professionals, the group has produced an EDRM Model Code of Conduct Project to issue aspiring eDiscovery ethics guidelines and is working on a model Search Project.

But biggest piece of the discussion is how to create benchmarks and standards for repeatable, defensible, and consistent business processes through the entire eDiscovery process. There are no current quality standards for eDiscovery, but there are several models that could be adopted. For example, the ISO 9000 quality management system defines industry-specific quality standards and could be tailored to eDiscovery. The Capability Maturity Model Integration (CMMI) in software engineering follows a similar model, but unlike ISO, does not require annual updates for certification.

This is still a nascent movement, characterized more by workshops and panel discussions than by actual standards efforts. Recent events include EDRM 2011-2012 Kickoff Meeting, St Paul, MN, May 11-12, ICAIL 2011 DESI IV Workshop, Pittsburgh, PA, June 6, TREC Legal Track, Gaithersburg, MD, November, and the SIRE workshop at the Special Interest Group on Information Retrieval (SIGIR) SIGIR 2011 on July 28.

There seems to be a growing consensus that industry standards are not just useful, but likely necessary in eDiscovery. The Sedona Commentary on Achieving Quality in eDiscovery Principle 3 says, “Implementing a well thought out e-discovery process should seek to enhance the overall quality of the production in the form of: (a) reducing the time from request to response; (b) reducing cost; and (c) improving the accuracy and completeness of responses to requests.”

The question now seems to be, what type of standards need to be in place and who is going to craft them. So, what do you think?  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 jasonkrause@hotmail.com.

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 jasonkrause@hotmail.com.

eDiscovery Trends: Sedona Conference Database Principles

 

A few months ago, eDiscovery Daily posted about discovery of databases and how few legal teams understand database discovery and know how to handle it.  We provided a little pop quiz to test your knowledge of databases, with the answers here.

Last month, The Sedona Conference® Working Group on Electronic Document Retention & Production (WG1) published the Public Comment Version of The Sedona Conference® Database Principles – Addressing the Preservation & Production of Databases &Database Information in Civil Litigation to provide guidance and recommendations to both requesting and producing parties to simplify discovery of databases and information derived from databases.  You can download the publication here.

As noted in the Executive Overview of the publication, some of the issues that make database discovery so challenging include:

  • More enterprise-level information is being stored in searchable data repositories, rather than in discrete electronic files,
  • The diverse and complicated ways in which database information can be stored has made it difficult to develop universal “best-practice” approaches to requesting and producing information stored in databases,
  • Retention guidelines that make sense for archival databases (databases that add new information without deleting past records) rapidly break down when applied to transactional databases where much of the system’s data may be retained for a limited time – as short as thirty days or even thirty seconds.

The commentary is broken into three primary sections:

  • Section I: Introduction to databases and database theory,
  • Section II: Application of The Sedona Principles, designed for all forms of ESI, to discovery of databases,
  • Section III: Proposal of six new Principles that pertain specifically to databases with commentary to support the Working Group’s recommendations.  The principles are stated as follows:
    • Absent a specific showing of need or relevance, a requesting party is entitled only to database fields that contain relevant information, not the entire database in which the information resides or the underlying database application or database engine.
    • Due to differences in the way that information is stored or programmed into a database, not all information in a database may be equally accessible, and a party’s request for such information must be analyzed for relevance and proportionality.
    • Requesting and responding parties should use empirical information, such as that generated from test queries and pilot projects, to ascertain the burden to produce information stored in databases and to reach consensus on the scope of discovery.
    • A responding party must use reasonable measures to validate ESI collected from database systems to ensure completeness and accuracy of the data acquisition.
    • Verifying information that has been correctly exported from a larger database or repository is a separate analysis from establishing the accuracy, authenticity, or admissibility of the substantive information contained within the data.
    • The way in which a requesting party intends to use database information is an important factor in determining an appropriate format of production.

To submit a public comment, you can download a public comment form here, complete it and fax (yes, fax) it to The Sedona Conference® at 928-284-4240.  You can also email a general comment to them at tsc@sedona.net.

eDiscovery Daily will be delving into this document in more detail in future posts.  Stay tuned!

So, what do you think?  Do you have a need for guidelines for database discovery?   Please share any comments you might have or if you’d like to know more about a particular topic.