When E-Discovery Is Put to the Test

E-discovery may be on a path toward its most searching scrutiny yet. In Disability Rights Council v. Washington Metropolitan Transit Authority, Judge John M. Facciola recommended "concept searching" -- the use of complex algorithms that use linguistic or statistical patterning -- for a tardy producer to wade through voluminous data quickly. But Facciola made no mention of whether concept searching tools should be subject to the FRE Rule 702 governing the admission of scientific or expert testimony.

Comments

[AE]

It is baffling to me how e-discovery and its challenges continue to unfold, apparently with great gaps in the discussion among the varied critical stakeholders, to wit, those approaching the issue from the law, from IT, and from records management.

The theme of this article is that FRE 702 hobbles the whole e-discovery premise because of the private ownership of proprietary search engines and their secret source code. Is this for real? Can it really be that the legal minds parsing out this issue, lo, these many months, are unaware of NON-proprietary search tools? Open source tools offer immediate and obvious solutions to the challenges posed here. How can these not be included in the discussion?

It's hard to believe that this massive blind spot is due only to ignorance, and I doubt it's as simple as ghettoization of geekdom; open source software has been abundantly discussed and argued in varied legal fora addressing GPL and GNU licensing. Surely someone has connected the dots.

Considering that e-discovery brings with it the potential for a whole new sub-specialty of IT and legal consultants to advise other IT and legal consultants, not to mention the proliferation of any number of new proprietary "management" tools, one has to wonder why the legal community wouldn't be more aggressively investigating the potential of ALL open-source solutions to the varied challenges of e-discovery. Just as a matter of financial self-interest, the failure to do so is nothing short of mind-boggling. But in the case of government lawyers who must confront the issue and make adjustments while on the taxpayers' nickel, it is almost unconscionable.

The legal field stands poised to institutionalize needlessly expensive new practices, rules, and procedures that will affect the practice of law and the exercise of justice forever. And yet again, those competent or fearless few who are able to capitalize on the IT phobias of the rest of us, stand salivating in the wings.

[I am not employed by SourceForge or any other OpenSource advocacy group or software developer. I am a taxpayer sick of paying through the nose because of IT-phobic policy makers failing to do their homework and protect the public interest.]