eDiscovery Case Law: Judge Scheindlin Says “No” to Self-Collection, “Yes” to Predictive Coding

http://ow.ly/cnnxB

An article by Doug Austin posted on the eDiscovery Daily blog. The article discusses an opinion by Judge Shira Scheindlin, and an article by eDiscovery expert Ralph Losey, Esq. Mr. Austin provides a link to the article by Ralph Losey, which appeared on Law Technology News, and is entitled "Judge Scheindlin Issues Strong Opinion on Custodian Self-Collection".

The article states, "Regarding the defendant’s question as to “why custodians could not be trusted to run effective searches of their own files, a skill that most office workers employ on a daily basis” (i.e., self-collect), Judge Scheindlin responded as follows:

“There are two answers to defendants' question. First, custodians cannot 'be trusted to run effective searches,' without providing a detailed description of those searches, because FOIA places a burden on defendants to establish that they have conducted adequate searches; FOIA permits agencies to do so by submitting affidavits that 'contain reasonable specificity of detail rather than merely conclusory statements."

The article further states, "...“The second answer to defendants' question has emerged from scholarship and caselaw only in recent years: most custodians cannot be 'trusted' to run effective searches because designing legally sufficient electronic searches in the discovery or FOIA contexts is not part of their daily responsibilities. Searching for an answer on Google (or Westlaw or Lexis) is very different from searching for all responsive documents in the FOIA or e-discovery context.”

“Simple keyword searching is often not enough: 'Even in the simplest case requiring a search of on-line e-mail, there is no guarantee that using keywords will always prove sufficient.' There is increasingly strong evidence that '[k]eyword search[ing] is not nearly as effective at identifying relevant information as many lawyers would like to believe.' As Judge Andrew Peck -- one of this Court's experts in e-discovery -- recently put it: 'In too many cases, however, the way lawyers choose keywords is the equivalent of the child's game of 'Go Fish' ... keyword searches usually are not very effective.'”"

The article provides further comments regarding the use of technology such as predictive coding, and mentions how they can be used to increase the effectiveness of locating relevant information.