The Book of Jargon®eDiscovery
An interactive glossary of acronyms, slang, and industry terminology.
The Book of Jargon® – eDiscovery is one in a series of practice area and industry-specific glossaries published by Latham & Watkins.
The definitions provide an introduction to each term and may raise complex legal issues on which specific legal advice is required. The terms are also subject to change as applicable laws and customary practice evolve.
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The information contained herein is not legal advice and should not be construed as such.
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- “Possession, Custody, or Control”
- as specified under 34, parties may request of within the other party’s “Possession, Custody, or Control” during ; the test to determine whether ESI is within a party’s “Possession, Custody, or Control” varies by jurisdiction. Some jurisdictions apply the “legal right” test (i.e., whether the party has a legal right to the data, regardless of whether it physically has the data), while others apply the “practical ability” test (i.e., whether the party has the practical ability to obtain the data).
- 30(b)(6)
- a provision of the that specifies the requirements for deposing an organization. The rule requires a corporation, partnership, association, governmental agency, or other entity to designate a witness who can “testify about information known or reasonably available to the organization” on topics articulated by the serving party. Testimony offered by a 30(b)(6) witness is binding on the organization. Most recently amended in 2020, the rule requires the serving party and members of the organization to in good faith about the matters for examination. 30(b)(6) depositions may implicate matters related to , including a company’s process, collection, search, review, and .
- 502(d)
- a provision of the Federal Rules of Evidence that protects against the (inadvertent or otherwise) waiver of during . Implemented in 2008 to decrease the costs of Privilege review in , the rule enables a court to “order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court — in which event the disclosure is also not a waiver in any other federal or state proceeding.” Because the rule protects against the waiver of Privilege without requiring a party to show that it took reasonable steps in its Privilege review to protect against waiver, 502(d) is a powerful tool in protecting a client’s Privileges.
- Active Learning (or Continuous Active Learning)
- a type of machine learning in which an algorithm analyzes a document reviewer’s Coding decisions to predict and rank outcomes for unreviewed data. A form of , Active Learning also efficiently sorts, prioritizes, and codes unreviewed data. Basically, Active Learning is lawyers leading machines and machines leading lawyers.
- Analytics
- a system or tool that uses algorithms to group, categorize, rank, assess, organize, and review data. Analytics allows users to view visual patterns and themes in their data, providing thematic insight at all stages of a matter. Analytics also contributes to how you receive suggestions of what to binge-watch on TV.
- Artificial Intelligence (AI)
- an area of technology in which machines simulate human intelligence to perform functions and learning. AI is increasingly playing a large role in matters involving , as it can help users identify relevant or important documents faster, understand patterns in data, and achieve cost savings. For example, is a type of AI used in eDiscovery workflows.
- Asymmetrical Production
- litigation matters characterized by one party collecting, reviewing, , and producing a disproportionate amount of compared with its adversary. Due to the nature of some cases (e.g., class actions), Asymmetrical Production is sometimes expected; in other cases, a party will use Asymmetrical Production as part of a litigation strategy to request a large document from the other party. It is the modern version of burying someone in paper.
- Attachment
- a document or that is associated with another File (e.g., an Attachment to an ). Most commonly, Attachments to a single record are treated as a single unit during , , and review. Attachments are associated with a document and together make up a . An Attachment is also what you inevitably forget to include in a message to your boss.
- Attribute
- a characteristic of an , such as “title” or “date modified.” Attributes are displayed in a record’s .
- Backup Tapes
- a copy of that is available to recover data in disaster or emergency systems. The Backup Tapes format will vary by system and . Backup Tapes are often not readily accessible and can require special or collection. For this reason, they may become a source of contention during , as searching and/or recovering ESI from Backup Tapes can result in undue burden or expense for a party. These days, “Backup Tapes” is a bit of a misnomer, as many entities back up their media on disks or other forms of storage.