Applying Scientific Method to E-Discovery Growth

Recently, one of the discussions concerned scientific method. One side championed the classic steps of scientific method, e.g., systematic observation, measurement and experiment, and the formulation, testing, and modification of hypotheses. The opposition retorted that while scientific method sounds good when teaching young and eager students, in reality what takes place is hardly the seamless movement from one step to the next until the truth is revealed. This article discusses scientific method as it applies to the growth of e-discovery and its protocols.

Zubulake

In Zubulake v. UBS Warburg, the series of opinions published from 2003 to 2005, Judge Shira Scheindlin of the U.S. District Court for the Southern District of New York addressed e-discovery starting as a novice and ending with a level of expertise that she passed to her readership. Courts prior to Zubulake, knowing little about digital evidence, typically failed to address key issues and, instead, took the position that there were two sides to every issue and the court could not choose a winner or a loser. Reading the Zubulake opinions, however, one can see Scheindlin becoming far more comfortable with her understanding of how digital evidence was stored and preserved, how digital forensics could help determine whether that evidence had been properly preserved and where evidence no longer readily accessible to the user could be retrieved by forensic experts. When her understanding of how digital evidence was preserved and restored grew sufficiently, she was able to write opinions, supported both scientifically and legally, which brought the law of e-discovery to a level of sophistication comparable to that of the digital world the law was observing and interpreting.