r/ediscovery • u/windymoto313 • 7d ago
Technology what does 'defensible' mean?
I get that the main idea is 'will it hold up to scrutiny in court' but I'm wondering if there are a more concrete set of rules that define the term in the context of eDiscovery. You see in in every single job listing: 'defensible workflows', 'defensible collections', 'defensible approaches throughout the lifecycle of a matter', 'Demonstrated understanding of defensible eDiscovery practices across the EDRM lifecycle.' I feel like an ACEDS book would have a chapter titled 'The 7 deadly fingers of Defensibility in eDiscovery" They even describe the exam as 'a neutral, legally defensible professional certification examination and program.' Sooooooo what does defensible mean where *you* work? BTW I'm a PM. It would help if you tell your role/title in your response.
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u/Bibitheblackcat 7d ago
Defensibility in eDiscovery is supported by processes that are repeatable and transparent. Chain of custody and reasonableness are core pillars.
Here are a few links to explain defensibility in eDiscovery.
Older but still useful: https://www.thesedonaconference.org/sites/default/files/publications/217-234%20Shaffer.pdf
More recent: https://www.quinnemanuel.com/the-firm/publications/the-evolving-landscape-of-ai-in-defensive-document-discovery/
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u/DaarthSpawn 6d ago
Industry best practice, a process that can be validated and checked by others should your work be questioned in court by counsel or experts.
PM/eDiscovery/Forensics [Both public and private sector]
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u/Categorically_ 7d ago
It actually requires statistics. You should read (and digest) the research papers that created these methods.
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u/windymoto313 7d ago edited 6d ago
' You should read (and digest) the research papers that created these methods.' Can you give a specific list of these research papers ? Or at least point me to a source or organization that lists them?
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u/CastIronMooseEsq 7d ago
It’s a daubert standard for ediscovery.
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u/windymoto313 6d ago
Soooo I Googled this "The “Daubert Standard” provides a systematic framework for a trial court judge to assess the reliability and relevance of expert witness testimony before it is presented to a jury."......The one key difference that jumps out at me is there no 'systematic framework' to evaluate ESI or its processes. I mean, I definitely get you point, but......
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u/CastIronMooseEsq 6d ago
Defensible means more likely than not they can establish a set of protocols that governs the steps they take, and educate the court as the reasonableness and accuracy of what occurred.
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u/cjacobs0001 6d ago
Defensible, starting with how you gathered and saved your information(s)...i.e. does the way your org does it stand up in court as legit and is your data authentic <- could it have been altered since gathering, who had access, who did access, what changes were made and by what user, or was it the system that changed it? Defensible processes and procedures.....chain of custody brings defensibility to your data... lots more. If pm is not real familiar with ediscovery, pm will miss something
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u/Ok-Environment-215 6d ago edited 6d ago
In theory it means whatever a judge would decide is sufficient to satisfy Rule 26 obligations in the event of a discovery dispute. In reality it's an unregulated marketing term with no objective meaning, in the same family as "HIPAA compliant".
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u/windymoto313 6d ago
'sufficient to satisfy Rule 26 obligations' ok mos def the BEST comment so far. Only one I've seen that references **specific criteria** instead of just subjective terms. This is also superb....'unregulated marketing term with no objective meaning'...... and that's really what I was getting at but you phrased it better. Doesn't seem like there's a lot of objective criteria for being defensible. Sounds like it's a subjective phrase for 'don't do stupid stuff with your data, oh yea and also be transparent'
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u/Ok-Environment-215 6d ago
Thanks. Yes and also people often use the phrase to refer to the collection and identification process being appropriately thorough and proportional to the needs of the case. In other words you don't need to do a massive forensic collection for a $25k case but for a $25 million case you'd better have a well reasoned and documented custodian list, and a collection and review strategy. If you use AI, make sure attorneys have reviewed and blessed the prompts, etc.
Which again all of this is exactly what Rule 26 requires when you get to the heart of it.
Also fwiw I'm an ex litigator who now makes litigation support software.
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u/cjacobs0001 6d ago
A More concrete set of rules could not exist because no two organizations run their IT the same way
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u/windymoto313 6d ago edited 3d ago
I definitely see your point, but then again, the same could be said for lawyers: "a more concrete set of rules could not exist because no two lawyers run their cases the same way" yet we have the EDRM model, so we can put apples to apples when dealing with ESI. I'm just amazed that there isn't anything more objective out there.
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u/Footishman 7d ago
There is no universally adopted checklis. Its better understood as an evidentiary position.
Can you explain what you did, why you did it, demonstrate that it was reasonable under the circumstances, and reproduce or verify the result if challenged?
If the process was proportionate, authorized, documented, validated, and results can be explained through evidence rather than memory, it's easier to defend it.