E-Discovery: Reasonable Search, Proportionality, Cooperation, and Advancing Technology, 30 J. Marshall J. Info. Tech. & Privacy L. 433 (2014)

Authors

Steven Bennett

Citations to This Work

• Sara Metzler, Moving Discovery Forward In The Technology Age, 29 Geo. J. Legal Ethics 1153 (2016)
• Michael Thomas Murphy, Occam’s Phaser: Making Proportional Discovery (Finally) Work In Litigation By Requiring Phased Discovery, 4 Stan. J. Complex Litig. 89 (2016)
• Shannon Brown, Peeking Inside The Black Box: A Preliminary Survey Of Technology Assisted Review (Tar) And Predictive Coding Algorithms For ediscovery, 21 Suffolk J. Trial & App. Adv. 221 (2016)

Abstract

Rule 26(g)(1)(A) of the Federal Rules of Civil Procedure (the “Federal Rules”) requires that an attorney responding to a discovery request verify by signature, after “reasonable inquiry,” that the disclosure is, to the best of the attorney’s knowledge, “complete and correct.” In a digital environment, with masses of data in multiple formats and locations, the determination of whether a “reasonable” effort to meet the completeness requirement has occurred may turn on an assessment of the practices used to conduct a search of electronic materials. Those practices, in turn, must be judged on a standard of “proportionality” (i.e., that the effort fits the size and needs of the case). As search technologies change, moreover, standards of reasonableness necessarily must also change. Given the difficulty in achieving certainty as to the adequacy of any particular search system, emphasis on cooperation and agreement has become a rational method of proceeding. This Article briefly reviews the impact of proportionality, cooperation, and technology on developing standards for “reasonable” search, and suggests practical steps for clients and counsel to prepare to defend the adequacy of their search efforts.

Recommended Citation

Steven C. Bennett, E-Discovery: Reasonable Search, Proportionality, Cooperation, and Advancing Technology, 30 J. Marshall J. Info. Tech. & Privacy L. 433 (2014)