Migrated from eDJGroupInc.com. Author: Barry Murphy. Published: 2010-06-30 18:27:49Format, images and links may no longer function correctly. Like many nascent markets, the eDiscovery industry is one without absolute standards, common practices, or agreement on how best to execute processes. This fact is both exciting and frustrating. It’s exciting because there is a lot of opportunity for innovation – and that means jobs, new value, and new streams of revenue. However, it’s also frustrating because innovative ways of doing things need to be argued by lawyers and approved in case law – that adds a level of complexity that slows change and wastes a lot of money on things that feel unnecessary (like legal wrangling over an issue that is really just a way for an organization to hide bad behavior or poor information management practices).
I noticed a lack of agreement over native review and redaction in a really nice paper written by Christine Musil of Informative Graphics. Christine gets perspectives from several well-respected eDiscovery experts – George Socha, Browning Marean, and Tom O’Connor included – about what native review really is and what it means when it comes time to redact information. That these experts all have somewhat different interpretations about what native review constitutes is interesting unto itself and points to some of the difficulties in the eDiscovery market. Just the fact that there is room for various interpretations of what a native document is adds complexity to the process. But, what is encouraging is that all the experts agree on how to address the issue – be ready and prepared for meet-and-confer sessions.
In fact, this is where Christine really hits a home run with this article. While Ms. Musil works for Informative Graphics, which markets a redaction tool, she does not make her company’s product the focus of her article. Rather, she points out what is really needed, which is a good strategy for being ready for meet-and-confer sessions. Preparation is so important because organizations need to know what information they have, what format it is in, and what elements of it may be privileged or private. That knowledge will inform what the right production format will be, especially for native files in need of redaction. Now, in my humble opinion, these little arguments over formats and the like are often ones that legal fights simply to give them a potential out – maybe sanctions for the opponent or some other kind of event that can be the basis for an appeal. In a perfect world scenario, both parties show up to the meet-and-confer knowing what they have and ready for a constructive discussion of how best to produce it reasonably.
The need for preparation does not mean that the execution of redaction is not important. Just recently, TSA got some bad press for redaction that didn’t really work. Clearly, there is a need to ensure that the redaction methodology used will work for the format of data in question, and to make sure that the redaction will actually make the private text both non-visible and non-searchable. In order to select the right redaction methodology, though, organizations must know what information they have, what format it’s in, and what elements are private or privileged. That takes planning and really requires that a proactive eDiscovery initiative (and hopefully infrastructure) be in place. The good news is that most of the industry pundits agree that proactive planning is the right first step. Hopefully, the right way to natively produce and redact will come out in the wash and some standard practices can emerge.