DISCOVERY INTEGRITY
PRIVATE BETA
A production tells you what it holds. Absentia tests what it should.
Discovery is reviewed from the inside. The producing side controls the search. The requesting side receives the result.
Absentia analyzes the structure of a document production and identifies patterns consistent with missing material.
Built for litigation teams.
01THE PROBLEM
Discovery is self-graded.
The responding party chooses the systems, custodians, search methods, and review process used to produce its own evidence. Courts generally require more than suspicion before allowing the other side to inspect that process.[5]
That leaves a proof trap: you often need evidence of a missing document before you can investigate how it went missing.
Today, the first clue is usually found by a person.
- A reply without the earlier message.
- An attachment without its parent.
- A witness who remembers a record that never appeared.
- Or luck.
THE FINDING
Whether the gap is found should not depend on who is on the matter.
Finding the document that is not there is the work.
The first clue is usually found by a person. Someone who has read enough productions to know what a normal one looks like, and who notices the one thing that is not in this one.
That is a real skill and it is not evenly available. It depends on who was staffed to the matter, on how much of a corpus one reader can hold at once, and on how much time there was before the deadline.
A production should not be tested only when the right person is reading it.
Absentia does not replace that reader.
02 THE STAKES
The rules begin after the loss.
FED. R. CIV. P. 37(e)
Rule 37(e) addresses ESI that should have been preserved, was lost because reasonable steps were not taken, and cannot be restored or replaced. Remedies then turn on prejudice and, for the harshest measures, intent.[2]
The top of the scale is the case itself.
On a finding that a party acted with the intent to deprive another party of the information's use in the litigation, Rule 37(e)(2) permits the court to dismiss the action or enter a default judgment.[2]
The same finding permits the court to presume that the lost information was unfavorable to the party, or to instruct the jury that it may or must presume so.[2]
A survey of written federal opinions from cases before 1 January 2010 identified the severe sanction types courts had imposed for e-discovery violations: dismissal, default judgment, adverse jury instructions, and sizeable monetary awards.[4]
36
cases in that survey in which a terminating sanction of dismissal or default judgment was entered against a party for e-discovery violations.[4]
20
of those 36 involved failure to preserve evidence. 7 involved failure to produce, and 9 involved both.[4]
Willoughby, Jones and Antine, Sanctions for E-Discovery Violations: By the Numbers, 60 Duke L.J. 789, 805-806.
In imposing dismissal, 20 of the 36 courts considered the prejudice to the opposing party resulting from the loss or failure to produce evidence.[4]
These are the rarest outcomes.
The measures in Rule 37(e)(2) are available only on a finding of intent to deprive.
The 36 are a count from a survey of written opinions, not a rate. That survey closes at January 2010, before the current text of Rule 37(e) took effect in December 2015.
Absentia does not promise sanctions. It does not prove spoliation. A signal is not a verdict.
Court disputes are the visible cases, not a failure rate for all productions.
The rule supplies a remedy. It does not detect the missing evidence.
What the record shows.
209
cases in the FJC's sample of 131,992 federal civil cases filed in 2007-2008 had a spoliation-related motion.
The FJC cautioned that spoliation is likely raised in many cases without becoming a motion.
401
cases involving motions for sanctions in a separate survey of written federal e-discovery opinions from before January 2010. 230 of them ended in a sanction award.
Willoughby, Jones and Antine, Sanctions for E-Discovery Violations: By the Numbers, 60 Duke L.J. 789.
Court disputes are the visible cases, not a failure rate for all productions.
THE LIMIT
More review does not create ground truth.
73%
of production cost went to review in RAND's study of 57 large-volume productions.[7]
Research using NIST's legal-discovery test collection found that full manual review was not a guarantee of completeness. In the tested tasks, technology-assisted review achieved recall at least as high as the official assessors' exhaustive manual review, and higher precision.[8]
Evidence against "a human looked at everything" as a completeness proof. Not a universal performance guarantee.
The question is not whether people worked hard. The question is whether the production has been tested from another direction.
THE BOUNDARY
A signal is not a verdict.
Absentia does not prove spoliation. It does not promise that every missing document can be found. Some records never existed. Some gaps are ordinary. Some loss cannot be reconstructed.
It gives litigation teams something they rarely have at the start: a systematic reason to look.
04 THE METHOD
Read the negative space.
A corpus has structure.
Communication volume changes over time. Participants recur. Attachments travel with messages. Records refer to other records. Business activity leaves a rhythm.
Absentia looks for where that structure breaks:
- 01 Statistical quiet zones
- 02 Broken sequences and missing counterparts
- 03 References to material that does not appear
- 04 Anomalies across time, participants, and document families
05 THE OUTPUT
A lead. With a reason.
Absentia ranks potential gaps and shows the evidence behind each one, so counsel can decide what to investigate, what to ask, and what to preserve.
Use the result to prepare a meet-and-confer, target follow-up discovery, test a production before it leaves your firm, or document why a gap deserves attention.
DEPLOYMENT
It can run inside your environment.
Local deployment is available. In that configuration the production never leaves your systems.
Deployment options, including a fully local deployment, are covered in access review.
ABSENTIA / PRIVATE BETA