A new committee is being planned to create defensible standards for processes and audits during electronic data discovery. Experts say the lack of such standards currently represents a significant hole in e-discovery methods.
The standards, proposed in Chicago on June 14 at the Seventh Circuit’s Electronic Discovery Committee Workshop on Computer-Assisted Review, would be administered under an organization approved by the American National Standards Institute. At minimum, it would guide attorneys in how to perform discovery of electronic information. Software companies and service providers could also market their work as standards-compliant.
If courts accept the as-yet unwritten standards, then could be put to use in cases. Instead of having to justify various processes and products used to manage electronically stored information in a case, an attorney could file a compliance document indicating that methods used or proposed meet the standard.
Leading the development of the committee, which has yet to be named, is Jason R. Baron, director of litigation, National Archives and Records Administration. Baron said the group would base its work on ISO 9001 — an internationally accepted quality metric that began use in 1987. E-discovery consultants Scott Dawson and Chris Knox documented that suggestion last summer at a machine-learning conference in Pittsburgh, he added.
“My vision is to have the workgroup accomplish two principal things: First, to raise consciousness on the subject of what constitutes ISO 9001 best practices as applied in the e-discovery space, and second, to build out a specific e-discovery code of practice standard that could be subject to auditing under an ISO 9001 rubric,” Baron explained. “Ideally, such a practice would be noticed by the judiciary, so as to hopefully narrow ancillary disputes over what constitutes best practices, especially with respect to the use of new software-assisted methods and other technologies of utility in e-discovery.”
Baron said he is in the early stages of working behind the scenes to gain acceptance from one or more ANSI-accredited organizations for the work group before launching it officially. He did not say which specific organizations. The group’s work to create initial standards could last about a year, he said. But when the group would begin, or how its results would become official court rules, remain undetermined.
The group would base its work on the Sedona Conference document, Best Practices Commentary on Achieving Quality in E-Discovery, which Baron co-edited in 2009. It would probably need at least one year to produce a new standard from that, he said. Individuals could participate from existing groups such as the ABA’s e-discovery committee and Sedona, and from data management trade groups such as ARMA (Association of Records Managers and Administrators) and AIIM (Association for Information and Image Management), he noted.
Baron, based in Washington, D.C., co-founded the National Institute of Standards and Technology’s Text Retrieval Conference Legal Track, commonly known within the legal technology field as TREC. TREC’s function is to provide an apples-to-apples comparison for document review software. It’s widely considered a success, with many top software companies participating since its birth in 2006. But a common criticism of TREC is that it lacks standards governing how testers achieve their results — a problem that also exists in real-world cases such as the current Da Silva Moore, et al. v. Publicis Groupe SA and MSLGroup controversy over the use of predictive coding technology.
“The effort would be expected to include [representatives] from software companies and consultants as well. My understanding is that ISO 9001 processes involve audits, and so there may ultimately be costs involved in participation. My bottom line, however: Any effort worth undertaking is never completely free from differences in viewpoints expressed, and I welcome a spirited dialogue,” Baron stated. TREC is currently on hiatus but the existence of a new group would not override its return, he added.
Working with an ANSI-approved standards body would be a pioneering step for the e-discovery field. One such body is OASIS — Organization for the Advancement of Structured Information Standards — which already works with courts on the LegalXML electronic filing standard. OASIS previously expressed interest in working on a standard for e-discovery software load files but that situation has not developed.
“I think, generally speaking, certification and standardization is something critically needed for the industry,” said Symantec Corp.’s Dean Gonsowski. As senior e-discovery counsel, he’s involved in in corporate litigation, and also provides insight for Symantec’s Clearwell Systems e-discovery product line.
“We’re less concerned with who does it and more [concerned] that whoever takes charges of the windmill is someone credible, like Jason, [who] has good academic chops, and isn’t beholden to any particular vendor or type of technology. If they’re agnostic and it’s not a pay-to-play model, then we’re certainly supportive of it,” Gonsowski noted.
“As the e-discovery industry matures and becomes more like a traditional information governance landscape, I think you’re going to see more,” Gonsowski added. “If you want to show a defensible process, anything you can do in terms of training, certification, testing — that is going to be helpful to buttress why you’re doing what you’re doing.”