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Technology: Relative defensibility of Boolean and statistical document culling workflows

Technology is fallible, but that doesn’t mean we shouldn’t use it

Our prior articles have addressed statistical document sorting technologies, various workflows that leverage this technology, and the defensibility of these technologies and workflows in court. The Kleen Products v. Packaging Corp. of America case pending before Magistrate Judge Nan Nolan illustrates the baseline of defensibility for the more traditional Boolean searching technology.

The several defendants in Kleen, an antirust case, used Boolean searches to generate a linear review set. The plaintiff argues that the process was inadequate and seeks to compel the defendants to try again using statistical document sorting technology. There is great interest in whether this case will become the first in which a party is affirmatively compelled to use statistical document sorting technology. But, leaving the question of the potential remedy aside, this case illustrates well the challenge of defending a Boolean process that is conducted unilaterally.

Contributing Author

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Thomas Lidbury

Thomas A. Lidbury is a partner in Drinker Biddle & Reath's Commercial Litigation practice and leads the electronic discovery and records management group. He advises clients in...

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Contributing Author

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Michael Boland

Michael J. Boland is managing director of Drinker Discovery Solutions LLC, a subsidiary of Drinker Biddle & Reath, which provides electronic discovery services including processing and advanced...

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