With any particular legal field, the treatment, practice and resulting jurisprudence may ebb and flow over time with societal values and practicalities (apologies to the “strict constructionists” amongst us). An historical adherence to precedence is designed to keep us within parameters and standardized or accepted approaches to factual circumstances and subject matter quickly develop. As an example, Hart Scott Rodino is a mature practice with expected twists, turns and responses. The practice of eDiscovery is different and because it is both created and affected by technology, I believe that it will continue to evolve at dizzying speed. Inevitably, rapid technological evolution paired with the conscious conservatism and methodology of law will produce “progress” at varying rates. eDiscovery (more broadly, legal data management) is legal practice in an environment where there is a huge divide between what technology allows us to accomplish versus what our profession requires of us.
eDiscovery professionals do have guidance from primary and secondary legal sources and significant input from legal services providers. The FRCP (and impending changes), rules of professional conduct and caselaw provide a true practice framework for eDiscovery. However, this framework provides considerable flexibility on individual matters. It is in the large spaces that exist between rulemaking where eDiscovery practitioners look to policy think tanks (Sedona, EDRM, etc.), conferences, colleagues, “thought leaders” and wonks and legal services vendors for support and guidance. It is in that space that standards of practice are created client by client, firm by firm and day by day.
Although we are fundamentally constrained by reasonableness, “competence,” fairness and proportionality, the eDiscovery industry is largely motivated by comfort level, cost, client input and emerging technology. The primarily organic eDiscovery standards of practice, free-formed and tailored to specific need and context (the business of law), create a confusing array of priorities and an increase in ebb and flow as professionals are influenced by a market that (in no particular order) emphasizes predictive coding, information governance, data mining, cyber-security, etc. It also encourages a tech-centric, competitive, one-dimensional world where an irrational fear of being perceived as out-dated (though compliant) may be contrary to successful business models. Within the bounds of professional requirements, standards of practice should incorporate efficiency, superior technology, collaboration, progress and proven, defensible means.
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