In the card game Uno, the object is to be the first player to get rid of all your cards by matching the number or color of the card on top of the discard pile. But once a discarded card is below the surface, it’s out of play for good.
In document-intensive reviews, the “discard pile” should not be so easily overlooked, especially when search-based culling or technology-assisted review (TAR) are in play. Once search terms have been determined, or a responsiveness threshold for TAR has been reached, counsel often discards all the documents that fall outside those parameters, choosing not to review the documents least likely to be responsive. Although this streamlines the e-discovery process, making it cost-effective, it may also open the process to challenges from opposing counsel.
To ensure defensibility, counsel needs to make sure that nothing about the process is arbitrary. Instead, counsel should work closely with a team of experts to make informed decisions regarding any sort of cut-off. They must document how the experts reached the decision and the statistics they examined in doing so.
In most reviews, random sampling on the discard pile should be part of the quality control process. If, during this step, potentially relevant documents are discovered, they should be moved into the responsive subset of documents, and the process should be examined to determine whether those documents could represent any sort of systematic gap in the classification. That way, counsel can establish that no significant volumes of potentially responsive documents were overlooked.
By being proactive in managing their discard piles, parties can easily navigate any future disputes over their methods and ensure that e-discovery remains cost-effective.
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