In the wee hours last evening, I received a question posed by Angela Bunting with Nuix down in Sydney, Australia. Angela has such deep knowledge of e-discovery above and below the Equator that I was flattered to be queried by someone I’d go to for guidance. It was a magnificent hypothetical question.
Angela posited a scenario where a producing party used emerging technolgies to either mechanically translate foreign language text to English or voice recordings to text. In each instance, the quality of the resultant searchable text was poor, akin to bad OCR, and characterized by poor searchability due to malformed and missing words, misleading substitutions, etc. As a consequence of this poor searchability, some documents that should have been produced were not and, to make matters worse, the requesting party had some of the omitted documents, so could readily demonstrate serious flaws in production.
Challenged by the requesting party, the producing party defends the use of the automated transcription or translation based on proportionality. To do the same work any other way would have required use of costly and time-consuming manual labor.
So, there you have it: the automated approach was faster and cheaper, but also much less accurate and complete, resulting in a failure to produce non-privileged responsive material.
Angela asked what I believed the view of the courts might be in such a situation? Would the Court require the work be done again using a more accurate, more expensive method? Might sanctions issue? Would the Court excuse the failure based on proportionality?
Predicting what courts will do based on skeletal hypotheticals is a crap shoot. Outcomes turn on the peculiar facts of each case and, when the issue is e-discovery, on counsels’ skill in acquainting the judge with the technical underpinnings.
But, I gave it a shot, and here’s my reply: