Top Three Pitfalls Affecting Defensibility in E-Discovery


Co-written by Dana Miller and Jordan Schrader.

In e-discovery, defensibility is the name of the game. As the amount of electronic data eligible for review continues to grow exponentially, technology continues to generate new means for culling that data in response to discovery requests. For practitioners, the underlying concern in using this technology often boils down to the question of whether a particular approach will hold up in court. The courts have highlighted a number of defensibility pitfalls that have caused complications for the producing party. This article discusses the top three.

#1: Failing to take “reasonable” measures during the discovery process and in the creation of the production.

The standard articulated by the courts has been that for a discovery process to be defensible, the measures taken must “reasonable” given the facts and circumstances of the case.[1] In some instances, reasonableness may be easy to define, such as using a set of mutually agreed upon search terms to cull data for review. In other instances, a review may venture into new territory. For example, a production that is too voluminous to reasonably review even after search terms are applied to help hone in on potentially relevant documents, or cases for which the technology has not yet been adapted, such as the use of TAR for number-dependent responsiveness, as is the case with patent numbers. In these cases, counsel will often seek ways to reduce the data volume for review and minimize costs.

In tailoring the approach, it is important that counsel not lose sight of the reasonableness requirements. Even when document universes are large and false hits abound, counsel must ensure that they are not excluding materials that they would be otherwise required to produce. An egregious example would be failing to review any documents that could not go through an active learning model and excluding them from the production en masse or, conversely, producing them without reviewing for responsiveness or privilege. This is where a skilled e-discovery team can provide consultation on the workflow to ensure that it will meet the obligations of the ESI protocol, be defensible based on current industry practices, and meet the needs of counsel within the context of a particular case.

#2: Failing to take measures to validate results and identify shortcomings in the review methodology.

A second issue arises after the case’s workflow has been implemented. While there are many benefits to implementing technology-driven workflows, the discovery and review process remain far from entirely automated. Which is why a crucial step in finalizing a review and preparing for a production is to validate the results of the methodologies used. Where validation and quality control procedures are not implemented, counsel risks the defensibility of the production. Failing to perform quality and accuracy checks, such as sampling not responsive documents for responsive concepts or not privileged documents for privilege triggers, can result in a methodology being found to be unreasonable or indefensible, with consequences ranging from repeated labor to sanctions to waivers of privilege.[2] This obstacle is one that can be easily overcome through the use of standardized workflow principles articulated by industry thought leaders, such as those proposed by The Sedona Conference and the EDRM.

#3: Failing to document the workflow and engage in transparency with opposing counsel and the courts.

Finally, a mistake that often arises in the context of fast-paced production is the failure to document the workflow used to identify, cull, and review the data. There are numerous ways to fine-tune a data set, which ideally will be contemplated by the ESI protocol. It is important for a party to document how the data was collected, how it was searched and culled, and what data was reviewed for production. Common examples of things to be tracked include the collection procedures, deduplication process, date range application, search term application, email threading, the handling of lesser inclusive emails, and the validation protocols implemented before preparing for a production. In many cases, counsel will be required to disclose all technology and techniques applied to the data prior to production to opposing counsel and the courts, and the only way to provide a complete and accurate answer is through careful documentation of the workflow. Additionally, if the production is ever called into question, thorough documentation will allow an expert to examine and replicate the steps in order to attest to defensibility.

Special Counsel’s D4 and Managing Attorney teams are trained in e-discovery best practices and will help you ensure a defensible production that avoids these pitfalls. They will skillfully guide you through developing a workflow tailored to your case that will meet and exceed industry best practices. Connect with your local branch today!

[1] See Fed. R. Civ. Pro. 26(g)(1)(A); see also, e.g., Eurand, Inc. v. Mylan Pharms., Inc., 266 F.R.D. 79 (D. Del. 2010); In re Seroquel Prods. Liability Litig., 244 F.R.D. 650, 663 (M.D. Fla. 2007); Zubulake v. UBS Warburg, LLC, 229 F.R.D. 422 (S.D.N.Y. 2004).

[2] See Mt. Hawley Ins. Co.v. Felman Prod., 2010 WL1990555 (S.D. W. Va. May 18, 2010); William A. Gross Constr. Assocs. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y. 2009)

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