by Greg Behan, Esq.
A technical committee of the International Organization for Standardization (ISO) is moving forward with the development of standards for legal discovery involving electronically stored information (ESI). Previously, the committee generated international standards guidelines for the identification, collection, acquisition, and preservation of digital evidence with the goal of creating an impartial global mechanism for investigations involving digital devices and digital forensics. The ISO has created international standards for a diverse range of industries including food safety, healthcare, computers, finance, energy, automotive and service related products to name just a few. Their standards carry the weight of law in many jurisdictions and the scope and reach of the organization has helped to normalize global commerce.
The ISO committee’s co-editor and U.S. representative is Eric Hibbard who is also Co-Chair of the American Bar Association’s E-Discovery & Digital Evidence Committee and CTO for Security and Privacy at Hitachi Data Systems. Hibberd’s committee elected to move forward with the development of E-Discovery standards during a meeting in France hosted by the European Telecommunications Standards Institute. Joining the United States in support of the creation of these international standards were the United Kingdom, Thailand, Belgium, Brazil, China, the Czech Republic, Mexico, Norway, the Republic of Korea, Romania, Singapore, Slovakia, Slovenia, Italy and South Africa.
There are several U.S. institutions that have provided guidelines and recommended the adoption of technical standards for the production of ESI. In the past, there has been concern that technical standards may be premature given the continual advancement in technology and the ever changing litigation software landscape including the increasingly more common use of Technology Assisted Review (TAR) workflows. Depending on the dataset and the software tools utilized, a standardized process may inadvertently confer an advantage to one party over another. Just like any other industry, if international standards are adopted some firms will need to re-tool their processes in order to comply when working across international borders.
In order to control costs, large multinational corporations are becoming increasingly involved in the discovery process and will likely require law firms and vendors adhere to protocols developed by standards organizations like the ISO. This type of standardization will indicate that their company is purchasing services from a qualified source and will create metrics against which expenditures can be measured and analyzed to determine efficacy. Non-technical judges increasingly rely on standards organizations to make decisions related to eDiscovery issues and a set of recommendations by a renown institution like the ISO will certainly carry weight for any firm or business that relies on them before the bench.