Solving the High Cost of the 'Review' Stage of Electronic Discovery

Abstract

The right strategy for solving the high cost of the “review” stage of electronic discovery is to have the client index each significant text when created or received. The advantages are: (1) each text is individually indexed instead of indexing for a whole database of texts by coding a TAR device (technology assisted review device); (2) each text is index when it is first received or created, meaning that it has to be understood and read anyway, whereas “reading for review” requires a second reading and review; (3) keyword searches are more reliable when the indexing has been done for each text and not just for the whole database of texts; (4) searching an index by way of keyword searching is more reliable and cost-efficiently done than searching a database of the texts; (5) searching an index allows: (a) combining the searching and reviewing as one operation; (b) can be done by the client’s lawyer, who is the expert as to what are the issues and evidence necessary; and, (c) can be done with the speed of electronic searching; in comparison, reading for review has to be manually or electronically done by reading the text; (6) the great cost-saving thus obtained by way of a “front-end indexing” instead of a “back-end reading” of texts; (7) as a result, litigation based upon records as evidence, is much more likely to be affordable to all instead of being the preserve of the rich; (8) it uses the client’s expert knowledge of its business, technology, and terminology, and therefore uses the expertise of both the client doing the indexing, and the client’s lawyer doing the searching and reviewing of records for relevance and privilege, and therefore does not require the client’s involvement at any stage of the accessing of records; (9) it makes unnecessary the employing of less qualified people so as to reduce costs; (10) it greatly reduces the need for the proportionality principle for discovery proceedings, which principle is allowed insufficient regard to poor quality records management as being the cause of claims of disproportionality of further demands for production of records; (11) it justifies the use of a “due diligence” duty being added to the client’s lawyer’s duties, which will increase the efficacy of discovery proceedings; such duty would concern: (a) having the client adequately index its records; and (b) carried out the searching and reviewing of records; (12) it would comply with national and international electronic records management standards’ requirements for the indexing of records, as are contained in Canada’s National Standards for Electronic Records Management. Therefore the present strategy of relying on TAR devices, and avoiding issues as to the quality of database management, is wrong because: (1) it is much less efficient and cost-conscious; (2) it increases the probability of faulty production of records on discovery, and mistakes made as to the admissibility of records as evidence, and therefore it increases the probability of faulty judgements and justice as to what should be considered to be an unacceptable level. This article also reviews the many serious errors in records management that commonly found in electronic records management systems (ERMS’s), and also the errors found in software code that all ERMS’s depend upon. The main reasons these errors exist is: (1) there are no laws of general application that enforce compliance with authoritative ERMS standards; and, (2) many organizations believe that they can “get along just fine” with using only their most recently made and received records. In other words, ERMS technology lacks sufficient legal infrastructure to regulate its use and the use of the records it produces as evidence. The last section of this article provides the solution to these problems. As a result, this article provides the foundation for the new specialized field of, “records management law,” and the new specialist, the “records management lawyer.” The beginnings of this evolution have been created by way of the appointment “electronic discovery lawyers” by the big law firms. These themes are further developed in the other articles listed on my SSRN author’s page.

Keywords: KEYWORDS: electronic discovery, due diligence, records management law, records management lawyer, admissibility, TAR, predictive coding, review stage of electronic discovery, indexing, electronic records management systems, electronic records as evidence, regulation of technology producing evidence