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e-Disclosure Providers: Purely Impartial?

View profile for Casian Sala

The quality of impartiality is one much prized in law – indeed, it’s at the heart of the adversarial legal system. Without the impartiality of judiciary and jury, there’d be no true justice.

Yet for such an essential quality, impartiality is both elusive (who of us is entirely immune to unconscious bias on any number of grounds), and not above mockery: as GK Chesterton wryly put it, “Impartiality is a pompous name for indifference - which is an elegant name for ignorance.”

Nonetheless, the merest whiff of impartiality in litigation is enough to cause a legal stink. Over in the States, the question of what it means to be truly impartial has arisen from a most unexpected source: an e-Discovery provider.

During an employment class action against a hospital, an e-Discovery company tasked with reviewing and coding up to 300,000 emails (and if ever proof were needed of the supreme importance of a professional litigation support partner, this mind-boggling quantity of data would suffice) switched sides midway through the case. An appeal was made: surely the e-Discovery vendor’s intimate familiarity with documents to be submitted by the opposing side constituted prejudice?

Not according to the judge. In a fascinating review of what the e-Discovery process constitutes, it was found that the interrogation and coding of data did not constitute making a judgement on information examined – or indeed of even consciously assimilating the information. As Bob Ambrogi writes in the Catalyst blog: “The coding was ‘objective,’ meaning it was based on certain categorical information about the documents, not on judgement calls or subjective factors.”

Such a reading does not downgrade or dismiss the skill and professionalism of an e-Discovery provider. Rather, it emphasises the crucial importance of seeking litigation support from e-Discovery experts for whom true impartiality and rigorous data protection and confidentiality are built into their services.

Future trends analysts might consider whether by 2063 our quest for true impartiality might have led to the invention of armies of implacable DiscoverBots reviewing salacious data with never an eyebrow raised. In the meantime, firms keen to ensure their e-Discovery obligations are met to the highest standards should contact litigation support experts Legastat at the earliest possible stage.