e-forensic-experts

Marian Riedy, Suman Beros & Kim Sperduto, Mediated Investigative E-Discovery (opens in new tab), 2010 Fed. Cts. L. Rev. 1 (April, 2010)

ABSTRACT

The standard methodology used by parties today in formulating and responding to discovery requests is “key word searching.” But this methodology is ineffective: the percentage of all discoverable information that is actually retrieved using key word searches is demonstrably low. Simply broadening the search by using more general search terms may increase the retrieval percentage, but at an inordinate cost to both the requesting and producing party. When counsel crafts key word searches the result may be ineffective in another sense: a successful deployment of the methodology may require the input of experts in the field. The solution to the technical problems with key word searches may be for parties to propose alternative search and retrieval methodologies in discovery. But this would not solve a more fundamental problem with e-discovery today: increasingly contentious and expensive disputes over e-discovery, often centered over the search and retrieval methodology, the resolution of which is a substantial drain on judicial resources. The authors propose a novel process for conducting discovery and resolving disputes: mediated investigative e-discovery, in which a digital forensic investigator actually conducts the search for ESI, at the direction of the parties, as well as facilitates agreements on production between the parties. Mediated investigative e-discovery holds the potential for efficiently achieving full and fair discovery.