eDiscovery: Philosophy 2.0?

Published: July 1, 2009 | No Comments

By: Derek Dohn

Derek Dohn talks about some intractable philosophical aspects of eDiscovery in relation to the case Fed.R.Civ.P. 26(g)(1).

“Energy Brands itself has a duty conduct reasonable searches of the data base it has compiled to respond to Kay Beer’s discovery requests” –Kay Beer Distrib., Inc. v. Energy Brands, Inc., 2009 WL 1649592 (E.D. Wis. June 10, 2009).

Kay Beer’s opinion in the quote above struck me mostly as an example of old philosophical issues playing out in the context of the new Rules relating to eDiscovery. Specifically, the opinion interests me because of its application of ‘reasonable’ to the topic of search-term variants, and its tie-back reference to Fed.R.Civ.P. 26(g)(1).  Fed.R.Civ.P. 26(g)(1), the opinion reminds, underscores an attorney’s promise made by signing a response to a discovery request: namely, that an attorney is certifying that to the best of his or her “knowledge, information, and belief formed a after reasonable inquiry” the response is “complete and correct.” Is this Rule on certification anything more than a formality?

For my part, I think this Rule is interesting – pragmatically and philosophically – for two reasons. First, I think the Kay Beer opinion, referring to this Rule, highlights how an apparent resolution to a controversy can also invite renewed confusion. Second, the Rule invokes a very complex set of language concepts, with thin explanation. This is a persistent problem. Within the Federal Rules, there is a veneer of language indeterminacy, and this indeterminacy, in my view, lies at the heart of many organizations’ very real and pragmatic uncertainty. The risks that organizations and their counsel can face due to improper treatment of ESI fall into very well-used motions-practice categories, such as spoliation of evidence, adverse inference, summary judgment, and sanctions, to name a handful. These pivotal concerns are actual and pragmatic; yet, language indeterminacy themes are forcing the evolution of choice and decision amid potentially incoherent and conflicting language references.

While organizations across North America are scrambling to decipher the new F.R.C.P. mandates, there is a burgeoning expansion of software tools and techniques presented as Holy Grail solutions to meet the new problems. But as the tools change, so, too, do the interpretations of what’s ‘reasonable’ when declaring one’s ‘knowledge’ and ‘belief’. Parts of the Kay Beer opinion underscore the link being formed between technology and the meaning of certain language.

My perspective is that we are seeing the intersection of old and new problems. The advent of electronically stored information (ESI) and the December 2006 changes to the Federal Rules are driving U.S. organizations to operate increasingly in a sort of ‘forced compliance’ mode regarding ‘proper’ retention and management of ESI. That much is clear. Beyond that, though, corporate and legal strategies still trade on currency of language and interpretation. How would we gauge the maturity of law’s framework for handling of these old points of introspection? I think there’s much work to do here, especially as technology’s level of sophistication advances.

Specifically, as Law updates to keep pace with emergent technology, I believe that supplying a linguistic framework to help make sense of its language artifacts is crucial. Terms like ‘knowledge’, ‘belief’ and ‘reasonable’ are not benign. Nor are they clear. Historically, outside of law, these terms have received extensive attention and analysis, chiefly within the area of philosophy called epistemology: essentially, the study of the nature, scope and limitations of knowledge. There, ‘knowledge’ has been understood according to types and conditions – not any single-sentence definition. Consider the literary example of Theætetus. Theætetus was one of Plato’s dialogues that centered on examining the nature of knowledge. In the dialogue, three definitions are presented: knowledge as only perception, knowledge as true judgment, and knowledge as true judgment with an accounting for it. Each paradigm, in turn, uncovers very different notions – not just of ‘knowledge’, but also ‘belief’ and justification, too.

Looking back to Fed.R.Civ.P. 26(g)(1), what’s the philosophical connection? I think Fed.R.Civ.P. 26(g)(1) is a resoundingly epistemological axiom, even if accidentally. On its face, its obligation is grounded in a few areas: a person’s knowledge – perhaps different than a truth that is unknown at the time by that person; that person’s belief – which may or may not be based upon something external to their own perceptions; and, measurement, for evaluating the efficacy of these against a standard of ‘reasonable inquiry’. Using this framework as a heuristic, perhaps we might ask: Which of Plato’s paradigms does this fit into? It’s not entirely clear.

Some may think this is too esoteric for the very tactical area of eDiscovery and litigation readiness, but I don’t agree. The Rules, and many derivative opinions, lack a more fine-grained and systemic articulation of underpinnings to the proscriptive language construct they mark out. And the extent to which this perception is correct, then ambiguity plays a significant role in diminishing the probability of ‘getting it right’. For my part, I think that evolving a well-developed epistemic framework, built on newly adapted choices to old questions, is necessary if organizations are to be capable of forming coherent decisions about what it means to be compliant under the new Rules.

Tags: digital records management, ediscovery, electronically stored information, Energy Brands, epistimology, ESI, F.R.C.P., Fed.R.Civ.P. 26(g)(1), framework, Kay Beer, knowledge management, litigation, Records Management, retention

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By: Derek Dohn
Derek Dohn is a principal consultant within the Information Governance group at CA, responsible for nurturing and developing customer relationships in the areas of records management and eDiscovery. In this role, Derek provides insight and context for clients focused on eDiscovery and regulatory compliance, including developing processes to more strategically anticipate and plan for... Read More...