“eDiscovery Day” is December 1 in recognition of the effective dates for the 2006 and 2015 Amendments to the Federal Rules of Civil Procedure. Over the last decade, eDiscovery has dramatically impacted how attorneys conduct document review. In my guest post for Everlaw on When Has a Producing Party Completed Document Review, I analyze this issue based on recent case law and metrics from document review. Below is the first half of the blog post.
With Millions of Documents Collected, When Has a Producing Party Completed Document Review?
Document review can be a lengthy and involved process, with complex searches and multiple attorneys assigned to review potentially responsive data. Attorneys can rightfully ask, after diligently reviewing their search term reports and predictive coding hits, just when are we done with document review?
The answer is not as simple as when every email is read.
In the 2017 Davine v. Golub Corp case, the Defendants were given specific guidance on when their document review was complete. Stated in the order granting a motion to compel the production of email communications from 20 opt-in Plaintiffs was the following:
Defendants are entitled to rely on their predictive coding model for purposes of identifying relevant responsive documents, and may cease their review of the documents identified as possibly relevant when they made a good faith determination that the burden of continuing the review outweighs the benefit in terms of identifying relevant documents.
Davine v. Golub Corp., No. 3:14-cv-30136-MGM, 2017 U.S. Dist. LEXIS 18109, at *3 (D. Mass. Feb. 8, 2017).
Here is the $64,000 question: When does the burden of continuing document review outweigh the benefit of identifying relevant documents?
Case law states that the standard for producing electronically stored information is one of reasonableness, not perfection. See, Chen-Oster v. Goldman, Sachs & Co., 285 F.R.D. 294, 306 (S.D.N.Y. 2012), citing The Sedona Conference, The Sedona Conference Database Principles: Addressing the Preservation and Production of Databases and Database Information in Civil Litigation, March 2011 Public Comment Version, at 32. Moreover, parties must conduct a reasonable search when responding to discovery requests. Bird v. Wells Fargo Bank, 2017 U.S. Dist. LEXIS 113455, at *11-12 (E.D. Cal. July 20, 2017), citing See Reinsdorf v. Skechers U.S.A., Inc., 296 F.R.D. 604, 615 (C.D. Cal. 2013).
Discovery depends on attorneys acting in good faith and meeting their professional obligations to “reasonably and diligently search for and produce responsive documents.”
For the conclusion of analysis, please visit When Has a Producing Party Completed Document Review on the Everlaw Blog.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.