• July 18, 2016

Data Code Computer BinaryLast week, I posted on “CAR,” computer assisted review, as a significant challenge to U.S. civil litigators’ business models. Then I came across a recent “order on discovery of hard copy and electronically stored information” in a civil case (linked here).

Looking back on still other Minnesota Litigator posts, I note scores of posts on the high cost of e-discovery.  Help is on the way.  This recent order, as with the CAR business, is the proverbial thin edge of the wedge — it augurs leaner, more focused, and more sophisticated approaches by lawyers, litigants, and the courts. The transformation and standardization of electronic review processes will mean greater efficiency and lower cost.

Here are a few of the key points of progress:

  • Express notice of a litigation hold at the outset of a case (editor’s note: a minor but positive development);
  • A default preference for electronic (rather than paper) production of documents (editor’s note: over time the “preference” will be a requirement);
  • A requirement that that documents containing words be produced in word-searchable form (“OCR”);
  • Express recognition of the potential use of “automated search strategies and technologies”;
  • De-duplication expressly identified and defined (editor’s note: though, unfortunately—if understandably—not presently required, due to the cost, which will go down);
  • Exclusion of generally defined “non-responsive system files” (editor’s note: document reviewers currently bill time dealing with unreviewable files)
  • Express requirement to keep grouped documents (“parent” and “child”) together;
  • Express requirement to deal at the outset with password protected files (requiring that passwords be provided); and
  • Highly specific formats for production of “documents” (i.e., generally, computer files) and “meta data” (electronic information attached to computer files but not normally or always visible to users).

What this and other efforts to analyze and reduce inefficiency in e-discovery mean is that, going forward, far less, and far better data will be produced than has been customary in many cases over the past several decades.

This is terrible news to the law firms that have raked-in literally hundreds of millions of dollars having thousands of miserable lawyers comb through digital dross which can now by systematically and cheaply eliminated. Great news for the rest of us and, as with CAR, these systems will only improve in the years ahead.


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