Before the advent of large-scale e-discovery, lawyers had no need to disclose how they planned to review documents for responsiveness and privilege. Everyone knew there was only one way to do it. A human being looked at each record. But as e-discovery has mushroomed, new methods have been adopted to review large datasets without people personally examining every record. Such methods range from simple keyword searching, to concept grouping, to sophisticated "predictive coding."[FOOTNOTE 1]
Lawyers and courts thus can no longer assume they know how a party will review its documents. That fact can create uncertainty in the minds of adversaries, especially because the effectiveness of different review methods varies. Many courts and commentators accordingly urge parties to cooperate and try to agree upon review methods at the beginning of a case, before or during the course of a review. Without such disclosure, it is feared, a case could later become sidetracked into lengthy and expensive disputes about the review process.
While avoiding discovery disputes is an important goal, other considerations must also be weighed in deciding whether and to what extent to disclose a party's review methods. The attorney-client privilege, work-product doctrine, and other privacy concerns may weigh against disclosure in whole or in part. This article examines these concerns and argues that, in many cases, a combination of statistical sampling, non-waiver and other agreements, and/or in camera review by a judge or special master can help parties strike an appropriate balance between the goals of minimizing discovery disputes and of protecting other legitimate interests.
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By: Robert W. Trenchard and Steven Berrent