Revisiting the Wild West? The eDiscovery Medicine Show

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To appear in Ohio State Technology Law Journal 18:1 (2021), the following pre-publication article is shared with the author’s permission.

The eDiscovery Medicine Show

By Maura R. Grossman, J.D., Ph.D.* and Gordon V. Cormack, Ph.D.*

Article Extract

As recently as 100 years ago, harmful practices such as bloodletting were still advanced as sound medical practice by expert practitioners. Bloodletting gradually fell into disfavor as a growing body of scientific evidence showed its ineffectiveness and demonstrated the effectiveness of various pharmaceuticals for the prevention and treatment of certain diseases. Basking in the reflected glory of such scientifically proven medicines, unscrupulous purveyors of magical elixirs promoted their wares using pseudo-scientific evidence and testimonials from quacks and charlatans, presented along with free entertainment. These medicine shows persisted until, among other things, the Food and Drug Administration was given the authority to prosecute unsubstantiated therapeutic claims in 1938.

eDiscovery methods, like therapeutics, are amenable to scientific evaluation. But practitioners and their “experts,” vendors, and clients often ignore empirical evidence, citing instead existing or past practice to justify, for example, culling electronically stored information (“ESI”) using untested search terms, establishing neither their necessity nor their efficacy. Or, they use pseudo-science to promote various potions marketed as “Artificial Intelligence,” “AI,” “technology-assisted review,” or “TAR.” Or, they employ pseudo-science and various logical fallacies to impugn scientific studies that contradict their claims. Or they point to the oft-cited Sedona Principle 6 as justification to do whatever they please. Or, sometimes, even all of the above. Trade shows and other “educational” activities sponsored by vendors promote their wares, complete with pseudo-scientific results, testimonials, sponsored receptions, prizes, and hospitality suites. The Continuing Legal Education (“CLE”) industry and the trade press often echo these testimonials, failing to discriminate between practice and sound practice—let alone best practice—or between science and pseudo-science. So far, neither the courts nor any other authority has taken up the mantle, leaving parties to fend for themselves in the eDiscovery Wild West.

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* Maura R. Grossman, J.D., Ph.D., is a Research Professor, and Gordon V. Cormack, Ph.D., is a Professor, in the David R. Cheriton School of Computer Science at the University of Waterloo, in Ontario, Canada. Professor Grossman is also Principal of Maura Grossman Law, an eDiscovery law and consulting firm in Buffalo, New York, U.S.A. Professor Grossman’s work is supported, in part, by the National Sciences and Engineering Council of Canada (“NSERC”). The opinions expressed in this piece are the authors’ own and do not necessarily reflect the views of the institutions, organizations, or clients with which they are affiliated. The authors wish to thank Jason R. Baron for his thoughtful comments on earlier drafts of this article.

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Source: ComplexDiscovery