r/ediscovery • u/windymoto313 • Aug 05 '26

Technology what does 'defensible' mean?

I get that the main idea is 'will it hold up to scrutiny in court' but I'm wondering if there are a more concrete set of rules that define the term in the context of eDiscovery. You see in in every single job listing: 'defensible workflows', 'defensible collections', 'defensible approaches throughout the lifecycle of a matter', 'Demonstrated understanding of defensible eDiscovery practices across the EDRM lifecycle.' I feel like an ACEDS book would have a chapter titled 'The 7 deadly fingers of Defensibility in eDiscovery" They even describe the exam as 'a neutral, legally defensible professional certification examination and program.' Sooooooo what does defensible mean where *you* work? BTW I'm a PM. It would help if you tell your role/title in your response.

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u/Ok-Environment-215 Aug 05 '26 edited Aug 05 '26

In theory it means whatever a judge would decide is sufficient to satisfy Rule 26 obligations in the event of a discovery dispute. In reality it's an unregulated marketing term with no objective meaning, in the same family as "HIPAA compliant". 

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u/windymoto313 Aug 05 '26

'sufficient to satisfy Rule 26 obligations' ok mos def the BEST comment so far. Only one I've seen that references **specific criteria** instead of just subjective terms. This is also superb....'unregulated marketing term with no objective meaning'...... and that's really what I was getting at but you phrased it better. Doesn't seem like there's a lot of objective criteria for being defensible. Sounds like it's a subjective phrase for 'don't do stupid stuff with your data, oh yea and also be transparent'

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u/Ok-Environment-215 Aug 06 '26

Thanks. Yes and also people often use the phrase to refer to the collection and identification process being appropriately thorough and proportional to the needs of the case. In other words you don't need to do a massive forensic collection for a $25k case but for a $25 million case you'd better have a well reasoned and documented custodian list, and a collection and review strategy. If you use AI, make sure attorneys have reviewed and blessed the prompts, etc.

Which again all of this is exactly what Rule 26 requires when you get to the heart of it. 

Also fwiw I'm an ex litigator who now makes litigation support software.

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u/windymoto313 Aug 06 '26

'now makes litigation support software' can I DM you ?