A Defense of Legal Electronic Discovery
Electronic discovery reduces costs and increases quality. This article addresses concerns about non-human document review.
The legal discovery process is one of the most costly elements of litigation. Discovery typically involves lawyers, judges and consultants putting in significant hours looking through documents for all relevant information, reviewing every detail. A large case can require hundreds of thousands of man hours to effectively decide which information is relevant. Over hundreds of thousands of hours spent reviewing documents, lawyers are likely to commit errors.
Tremendous hours and elements of human error can be reduced greatly by the use of a new technology called electronic discovery. Electronic discovery software can group together similar documents based on queries provided by the user. As a lawyer goes through the legal discovery process, the software can learn from the reviewer’s actions and re-group documents according to what will be most useful. Giving reviewers the ability to make decisions for entire groups of documents saves tremendous amounts of time.
But can it be done effectively and legally? Yes. According to law and legal precedent, counsel may use computer-aided review to determine whether records are relevant in the legal discovery process. Also, if a document is mistakenly produced using electronic discovery, counsel can claim inadvertent production and demand return of the document. Documents produced from eDiscovery will be held to the same standard of “reasonableness” as documents produced by human review. Reasonableness is largely subjective. According to Federal Rules of Civil Procudre Rule 26, “what is reasonable is a matter for the court to decide on the totality of the circumstances.” Courts have accepted that some error rate is inevitable; courts do not expect perfection.
With all of the technology available, lawyers would be foolish to not take advantage. eDiscovery can reduce costs and improve quality substantially. While many old fashioned lawyers may think that eDiscovery is unnecessary technology, the advantages provided by it are simply too great to ignore.
