In the now iconic movie Pretty Woman (1990), rich patron Edward (played by Richard Gere) attempts to woo/rescue Vivian (a hooker-with-a-heart-of- gold played by Julia Roberts). There are several pretty quotable lines from the movie (oddly produced by Disney, given the topic), but the one that ties into eDiscovery is quipped by Vivian as she tries to defend her honor as an independent consultant/working girl:
“Look, you don’t own me. I decide, okay ?
I say who, I say when, …”
Whenever I think of Sedona Principle Six, this line pops into my head. It’s the ultimate declaration of the notion that “I decide” things like how to produce responsive data in eDiscovery. For those who are not intimately familiar with Principle Six, it reads as follows:
“Responding parties are best situated to evaluate the procedures, methodologies and technologies appropriate for preserving and producing their own electronic data and documents.”
This principle seems to often get lost in the shuffle as requesting parties (who often haven’t yet received responsive ESI) attempt to micromanage the producing party as they divine what tools and methodologies to best fulfill their eDiscovery burdens. This has been classically observed over the past few years with producing parties’ use/attempted use of predictive coding.
In a recent tax court case of all things (Dynamo Holdings v. Comm’r), this notion was once again reinforced. Here, the IRS Commissioner sought to compel production of the contents of backup tapes containing several million documents. Not surprisingly, the Commissioner objected to the producing parties’ request to use predictive coding, labeling it an “unproven technology” (he’d apparently been living in a 2010 time warp).
Fortunately, the judge channeled Sedona Principle Six and rejected the IRS’ motion, emphasizing the discretion that producing parties have in conducting document review, while more importantly questioning why the use of predictive coding should even be before the court in the first place:
“[T]he Court is not normally in the business of dictating to parties the process that they should use when responding to discovery. If our focus were on paper discovery, we would not (for example) be dictating to a party the manner in which it should review documents for responsiveness or privilege, such as whether that review should be done by a paralegal, a junior attorney, or a senior attorney. Yet that is, in essence, what the parties are asking the Court to consider–whether document review should be done by humans or with the assistance of computers.”
There are certainly some nuanced decisions in eDiscovery (and I’m not trying to paint all those with a broad brush). But, it clearly seems that a good (and well established) starting place should be Principle Six. This leaves the decision whether to use of predictive coding in the hands of the responding party and its counsel. This approach is fortunately consistent with the prevailing best practices reflected in case law (e.g., Kleen Products), the FRCP, and other authoritative sources like Sedona.
Transparency, the reasonableness of methodologies, and the use of protocols are all thornier issues that may arise downstream in eDiscovery. But the starting place is best stated by Vivian: “I say who, I say when…”
Maybe the best eDiscovery refrain should be “I say how…”