Sedona Conference publications and various judicial opinions have indicated a receptivity to using more cost-effective alternatives to traditional manual, record-by-record reviews of ESI, but there has been scant evidence of how the more advanced and cost-effective technologies perform relative to standard manual reviews. The Institute is actually testing different approaches by having different teams and technologies review records from 1.9 million items collected from nearly 80 custodians that had been previously reviewed manually for a Fortune 20 company.

The Institute, which is a registered 501(c)(3) tax-exempt organization, has established protocols under which the same set of instructions are given to different teams of reviewers with a predefined methodology for comparing results against those obtained by the original real-life review team. Considering the millions of dollars of legal fees spent on legal reviews, the study could have significant impact on how reviews are conducted by helping validate the defensibility of alternative, faster and lower-cost approaches.

Kershaw and Oot point out that all that is required under Rule 26(g)(1) of the Federal Rules of Civil Procedure is that the attorney singing the discovery response or objection to a discovery request is that:

“...to the best of the person's knowledge, information, and belief formed after a reasonable inquiry:
(A) with respect to a disclosure, it is complete and correct as of the time it is made; and
(B) with respect to a discovery request, response, or objection, it is:
(i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law;
(ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and
(iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.
(Emphasis added.)

Neither the rules nor the courts require “perfect” productions and privilege reviews because that is simply unattainable without extraordinary costs. The primary goal as stated in Rule 1 of the FRCivP is to “secure the just, speedy, and inexpensive determination of every action and proceeding.”

Kershaw and Oot testified before the Evidence Advisory Committee in favor of the then-proposed amendments to Rule 502 of the Federal Rules of Evidence that give broad enforceability to agreements of counsel pertaining to non-waiver of privilege when adopted by a Federal court in an order. In their testimony that cited one instance where the review of records prior to production cost $7.7 million with the responsive review costing $5.8 million.

The new Rule 502 holds the promise of lowering the costs of privilege reviews by greatly reducing the risks of privilege waiver if the proper court order is in place prior to production. The Institute is hoping to encourage the use of new approaches and technologies to further reduce the costs of complying with discovery requests.

The final results will be available later this year, but the institute’s website does have a slide with the preliminary results to date. According to the slide, one human team matched the initial review team 77 percent of the time and another human team matched the original team 72 percent of the time. Two teams that augmented their efforts with advanced technology matched 84 percent and 88 percent of the time respectively.

The final report will contain more detailed information about the project, with time and cost measurements.

Pending the final report, litigation support professionals can help move the industry in the direction of more cost effective solutions by educating their lawyers and their teams on the uses of technology that can help gather and process records, e.g. reviewing vocabulary lists from databases to gain familiarity with the terms or jargon of a particular case. This education should also include the meaning and use of terms like “precision,” “elusion,” “recall” and “retrieval operating characteristic (ROC)”as well as known problems of full text search such as synonymy and polysemy.

The Institute Web site has some great material in its Publications section, including some excellent content by long-time industry leader and expert Herb Roitblatt, Ph.D. that is worth not just reading but studying. (For more information on full text searching, see also Case Law Restrictions on the Use of Full Text Searching in the March issue of ALSP Update which includes a description of the Blair and Maron study.)

To keep abreast of developments by the Institute, sign up for the EDI mail list on the ediscoveryinstitute.com home page. You can support the Institute by attending the Pizaa Party Fundraiser to be held 12 November at a downtown D.C. location immediately following the Georgetown Law Center Advanced eDiscovery Institute.