D. Other Limitations. If a party or counsel knows that the systems or searches used in e-discovery will fail to perform as expected, they should be obliged to affirmatively disclose such shortcomings. If a party or counsel is uncertain whether systems or searches work as expected, they should be obliged to find out by, e.g., running tests to be reasonably certain.
No system is perfect, and perfect isn't the e-discovery standard. Often, we must adapt to the limitations of systems or software. But you have to know what a system can't do before you can find ways to work around its limitations or set expectations consistent with actual capabilities, not magical thinking and unfounded expectations.
Austin-based Craig Ball (craig@ball.net) is a trial lawyer and computer forensics and e-discovery special master.
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