An Offensive ESI Sampling Strategy

Migrated from eDJGroupInc.com. Author: Greg Buckles. Published: 2010-12-07 19:51:24  In the normal course of business, I am excited to see EDRM project content incorporated into caselaw, articles, research and by other experts in eDiscovery, especially when it is a piece that I contributed to. In a recent Law.com piece titled “A Strategy to Sample All the ESI You Need” attorney Nick Brestoff leveraged Section 9.5 of the EDRM Search Guide to propose forcing the opposition to produce samples of ‘irrelevant or nonresponsive’ ESI. His proposal is a stark reminder of the adversarial nature of our business. As one of the primary contributors on the validation sections of the Search Guide, I can assure you that I envisioned the producing party using sampling and the other methods to maximize precision, accuracy and completeness of discovery searches. I agree with Mr. Brestoff’s demand that parties disclose the scope, confidence levels and criteria used to sample. However, he basically challenges the producing parties ability or right to determine relevance and presents ‘three easy steps’ to demand all ESI not produced. That seems to effectively negate relevance review completely and excludes only duplicates, system files and privileged ESI.The point of targeted search and collection technologies is to maximize responsiveness while minimizing the cost and risk associated with inadvertent production of nonresponsive ESI. Relevance criteria on any sufficiently large and diverse collection will be imperfect. Sampling for false negative and false positive hits enables you improve your criteria and demonstrate your reasonable effort to comply with the discovery request. Our adversarial process rewards and encourages aggressive and offensive demands. It is expected that parties will make overly inclusive demands and then be argued back to a more reasonable compromise. Asking for everything excluded by search or review so that you can run your own sampling protocol is a great example of this kind of strategy. Let’s hope that the system continues to temper the scope of discovery against the realistic needs of the parties to support their cases. Luckily, as a technologist rather than an attorney, I am able to focus on optimizing the overall process rather than being obliged to seek every strategic advantage in a specific case.