XML Tags Provide Relief for eDiscovery

In a civil lawsuit, the plaintiffs try to get as much information through discovery as they can from the defendants in the case, and the defendants try to give their opponents as little information as possible without running afoul of the law. When a plaintiff casts a wide net for information, it's typically known as a fishing expedition. Fishing expeditions aren't new, but electronic discovery (eDiscovery) makes them all the more potent. That's because it is a lot easier to sift through a hard drive stuffed with electronic files than it is to eyeball a truckload of paper documents.

To a defendant, fishing expeditions can be very dangerous because they might open up new avenues of attack by the plaintiffs that would otherwise be unknown to them. In addition, it could reveal embarrassing information about the defendant that might not have any value as evidence in court but could be used as leverage to coerce a settlement. For example, if while trawling for information on a trademark infringement a plaintiff discovered evidence of bribes and kickbacks, a defendant might be willing to settle more quickly than if such evidence never came to light.

One way to blunt fishing expeditions is to precisely respond to requests for electronic documents. Such precision can be achieved if documents are divided into precisely explained information units. Defining such divisions has been one of the goals of the Electronic Discovery Reference Model (EDRM) Project. The model is an attempt to provide a common, flexible and extensible framework for the development, selection, evaluation and use of eDiscovery products and services.

A key component of the EDRM model is XML, or Extensible Markup Language. XML is used for the creation of many kinds of documents, but various professions, human resources for example, have their own flavors of XML tailored to their needs. EDRM is working on such a flavor for legal documents. With it, discrete units of information can be "tagged," making the data easier to find and categorize.

Moreover, the tags can contain plain text, which can be used when complying to eDiscovery requests. Information can be added to the tags to annotate, explain and interpret a document. This can be valuable when responding to a discovery order. For example, a tag could explain why a record is being disclosed, its meaning and its context in the case. Better yet, tags can also be used to explain why a particular record has been included in a discovery request while others have been excluded.  

"A disclosing party could possess more tactical options if its archives...were in a system that is compatible with EDRM’s XML format," argues e-discovery expert Benjamin Wright in his Legal Beagle blog.

"When the disclosing party is required to turn over emails in e-discovery, it can use text tags to tell its side of the story with respect to each one of those e-mails," he adds.

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XML (Extensible Markup Language) is a set of rules for encoding documents in machine-readable form. It is defined in the XML 1.0 Specification[4] produced by the W3C, and several other related specifications, all gratis open standards.[