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Extract from article by Ralph Losey

The predictive coding method can fail spectacularly with a poor expert, but so can keyword search. The converse of both propositions is also true. In all legal document review projects the SME needs to be an expert in scope of relevance, what is permitted discovery, what is relevant and what is not, what is important and what is not. They need to know the legal rules governing relevance backwards and forwards. They also need to have a clear understanding of the probative value of evidence in legal proceedings. This is what allows an attorney to know the scope of discoverable information.

If the attorney in charge does not understand the scope of discoverable information, does not understand probative value, then the odds of finding the documents important to a case are significantly diminished. You could look at a document with high probative value and not even know that it is relevant. This is exactly the concern of many requesting parties, that the responding party’s attorney will not understand relevance and discoverability the same way they do. That is why the first step in my recommended work flow is to Talk, which I also callRelevance Dialogues.

The kind of ESI communications with opposing counsel that are needed is not whining accusations or aggressive posturing. I will go into good talkversus bad talk in some detail when I explain the first step of our eight-step method. The point of the talking that should begin any document review project is to get a common understanding of scope of discoverable information. What is the exact scope of the request for production? Don’t agree the scope is proportionate? That’s fine. Agree to disagree and Talk some more, this time to the judge.

 

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