The eDiscovery Medicine Show

Maura R. Grossman and Gordon V. Cormack

Ohio State Technology Law Journal, Vol. 18 (2021)

A critique of e-discovery practices and products that borrow the language of science without submitting their claims to scientific testing.

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Overview

The paper uses the history of bloodletting and patent-medicine shows as a deliberately sharp analogy for parts of the e-discovery market. Familiar practices can persist long after evidence has undermined them; new products can also acquire credibility through testimonials, branding, and impressive-sounding statistics rather than valid evaluation.

Grossman and Cormack argue that search, culling, TAR, and validation protocols are all testable information-retrieval methods. Their adequacy should therefore be judged through transparent empirical evidence—not by tradition, vendor reputation, or the mere presence of a “statistically significant” sample.

Why this paper matters. The paper is both polemic and practical. It asks courts and practitioners to distinguish genuine validation from ritual, and to demand evidence that a method is valid and reliable for the task it is being used to perform.

Key contributions

Compares untested e-discovery claims with patent-medicine marketing.
Distinguishes the trappings of science from reproducible scientific evaluation.
Calls for search and review methods to be evaluated using information-retrieval methodology.
Uses the Daubert factors as useful guidance without demanding a full evidentiary hearing in every dispute.

Suggested citation

Maura R. Grossman & Gordon V. Cormack, The eDiscovery Medicine Show, 18 Ohio State Technology Law Journal (2021).