Flying under the radar: Proposed international e-discovery standard

Litigators who routinely deal with cross-border e-discovery and data privacy issues should no longer ignore the ISO or the IEC

If you are like most litigators, you have probably never heard of the International Organization of Standards (ISO) or the International Electrotechnical Commission (IEC), and you may have had little interest in learning more. That sentiment is likely to change for litigators who routinely deal with cross-border e-discovery and data privacy issues given recent moves toward establishing international e-discovery standards.

What is the potential impact of a new international e-discovery standard?

In April, Law Technology News (LTN) reported that a joint technical committee (JTC) comprised of the ISO and IEC technical committees gave final approval for the development of an international standard for the discovery of electronically stored information. The article explains that the discovery standard envisions a “guidance” standard focusing largely on terminology and process challenges. However, the article goes on to state that there are provisions “to allow the project to morph into a multi-part standard that could provide actual requirements, as well as guidance.”

If adopted, the e-discovery standard could have a significant impact on cross- border litigation and e-discovery generally, considering ISO standards may have the force and effect of law and be used to help establish legal precedent according to the LTN article. The potential sphere of impact is also broad given that over 65 countries participate in this particular JTC subcommittee known as JTC1, Subcommittee 27. In other words, those who deal with multinational litigation might want to monitor these developments since the chosen language could impact their practice both internationally and domestically.

Where do I get a copy of the proposed standard?

Obtaining a draft copy of proposed standards is not as easy as one might suspect. According to the ISO website, there are three different membership categories, and each possesses a different level of access and influence over standards development. Those categories include Full Members (i.e. country representatives), Correspondent Members and Subscriber Members. Only Full Members are able to vote and participate in ISO technical and policy meetings, while the other two categories are relegated to “observing” and keeping “up to date” on ISO’s work, respectively. Also noteworthy is the fact that Full and Correspondent Members may sell the standards they help create once those standards are adopted.

Whether or not membership is required in order to simply obtain access to drafts of the proposed standard is unclear. In response to my recent email to the secretary of Subcommittee 27 requesting a copy of the most recent ISO/IED 27050 draft, I was informed that the JTC committee is a closed system that works on a “delegation principle.” The secretary further explained that “[f]or this reason we cannot accept any contributions from your company or other interested parties unless you unless (sic) they become (sic) member of SC 27.”

How do non-members provide feedback on the proposed standard?

The formal route for providing feedback on the proposed international e-discovery standard is to become a member of the aforementioned Joint Technical Committee. The ISO website explains that standards are made by groups of experts called “technical committees,” and the “experts” making up the technical committees are nominated by ISO’s national members (aka country representatives). Those interested in getting involved with a technical committee can contact their national member, but membership is not guaranteed.

Similarly, a document on ISO’s website titled, “Joining In” explains that the “best opportunity to influence ISO’s technical work is offered by direct participation in technical committees, subcommittees and working groups.” The article goes on to explain that individuals may contribute to the work of a committee as an expert or as “heads or members of national delegations.” The document does not provide more details about how to be designated as an “expert” and leaves the impression that non-members can only provide feedback on standards if they are invited to participate in the process.

In the meantime, progress on the international e-discovery standard continues to move forward and a working draft of the proposed standard is scheduled to be processed at the next SC27 meeting in Incheon, Republic of Korea on Oct. 21-25, 2013. Those interested in providing feedback to the United States delegation can contact Project Editor, Eric Hibbard, CTO Security and Privacy at Hitachi Data Systems. Mr. Hibbard serves with Co-Editor Angus Marshall, Principal Scientist, n-gate ltd. Although requests to provide input and obtain draft language may be submitted, there is no guarantee requests to participate in the process by non-members will be honored and the criteria used to vet such requests is not well articulated on ISO’s website.

Conclusion

The establishment of standards can be an important part of promoting consistency, improving quality, and measuring success across a wide range of industries and professions. However, creating an international e-discovery standard that could impact multiple countries, industries, and litigation practices across the world requires a much higher level of scrutiny and transparency than the passage of typical ISO standards that are often only geared toward a single industry. That means JTC1, Subcommittee 27 should grant all interested parties the opportunity to review and provide feedback on the proposed standard throughout the process and attorneys should review the proposal on behalf of their clients. Providing a high level of transparency into the process moving forward will serve to increase the support and legitimacy of proposed standard ISO/IED 27050 if and when it is adopted.

Contributing Author

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Matt Nelson

Matthew Nelson is e-discovery counsel at Symantec and a legal technology expert with more than a decade of experience helping organizations address electronic discovery, regulatory...

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