2008-03-07 Discovery Search Protocol is Subject to Challenge

Bonus: FRE Rule 702 Invoked; Attorney Opinion about Technology Held *not* Gospel (Gasp)

Depending on one's point of view, today's decision in Equity Analytics v Lundin, 2007-cv-2003 (D.D.C. 2008) signals the beginning of the end, or the end of the beginning. It certainly is a watershed decision, and a harbinger of things to come. No longer should it be presumed that a Court will take the representation of counsel as to the efficacy of technology (including technology used in eDiscovery) as gospel. In this opinion, focusing in large part on eDiscovery issues, Judge Facciola repeats his "comment" first made two weeks ago in U.S. v. O'Keefe that

"'...lawyers express as facts what are actually highly debatable propositions as to efficacy of various methods used to search electronically stored information. United States v. O’Keefe, No. 06-CR-249, 2008 WL 44972, at *8 (D.D.C. Feb. 18, 2008). '"

The Court then states that the proper manner for challenge is by use of expert evidence produced in accordance with Federal Rules of Evidence 702. For those without a copy of the F.R.E. handy, Rule 702 provides that:

"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (2) the witness has applied the principles and methods reliably to the facts of the case."

In other words, the Court once again opens to the door to well-articulated and FRE 702 testimony-supported challenges to search results by way of challenge to search protocol.