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eDiscovery from Magic to Mainstream Technology

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Tuesday, August 30, 2011

eDiscovery from Magic to Mainstream Technology

Is the current state of eDiscovery sufficiently advanced from a technology standpoint that it is indishtinguishable from magic? Probably, but that isn't necessarily a bad thing.

It wasn't that many years ago that only a hand full of ligitation technology "geeks" knew what eDiscovery (Electronic Discovery or E-Discovery) even meant.  In fact, it really wasn't that many years ago that Information Technology (IT) had little or nothing to do with supporting the fine art of litigation. Don't get me wrong, there were plenty of disagreements about the ownership and use of  intellectual property and associated technology that were adjudicated in a court of law long before anyone had ever heard of eDiscovery.  There just wasn't much technology, if any, used to support the litigation process.

Litigation has historically been the dominion of lawyers with visions of men in white wigs and "Sherlock Holmes type" investigators gathering and presenting evidence under a set of rules that were completely foreign to all those except members of a club called the bar.  Perrry Mason dragged litigation and the "experience within the courtroom" into the post World War II era and made it a bit more glamerous and attractive.  But, there still wasn't much technology involved in the litigation process.

Typewriters and the Gold Era of Litigation
The introduction of the IBM Selectric typewriter in the 1960's revolutionized business around the world.  And,  in conjunction with the first commercially feasible copy technology in the 1960's, thanks to Xerox, the volume of paper expanded exponentially (Please note that I am not sure that anyone except a few math geeks used the word exponential at that time).  I think that the rule of thumb for most enterprises at this time was that if 1 copy was good, 20 copies was great!  So, with the proliferation of paper copies of everything, litigation had to accommodate this new paradigm of massive volumes of paper evidence.  And, hence the introduction of the cardboard legal box and what we all now fondly refer to as "document review".  Since most evidence was now on a piece of paper somewhere, every document had to be copied multiple times so that teams of lawyers (on both sides of the case) could review every single document (usually multiple times) and copies of all of this paper also had to sent to the courts. Some in the copy and document review business probably call this the "golden era of litigation" as there was millions of dollars spent on just copying and reviewing documents before the lawyers could even begin to get ready for trial.  Under any circumstances, the amount of potential evidence exploded and therefore litigation became very expensive during this time.

Scanning and Optical Character Recognition (OCR)Sad for many but true, the paper only era was actually short lived in the overall timeline of present day litigation practices.  By the 1980's, the Professional Computer (PC) with word processing was replacing the typewriter and a new paradigm shift was underway with the advent of Electronically Stored Information (ESI).  However, there was still lots of paper left over from the previous "owners" and still a fair of amount of paper being printed (and not stored) in the present paradigm.  So, beginnig in the 1980's and becomming prevalent in the 1990's commercially feasible scanning technology along with Optical Character Recognition (OCR) software hit the litigation technololgy market and now paper could be scanned and converted into searchable ESI.  The litigation service provider market emerged almost over night turning many with little more than a scanner in a warehouse into multi-million a year businesses.  With the advent of the scanner and OCR, the litigation cost per page went down.  But, with the accellerating volume of ESI, the overall cost of litigation continued to go up.  Unfortunately, the amout of information and the costs were about to go up even more.

eMail and the Internet
Even though PC's were prevelant throughout the enterprise in the 1980's, it was until the late 1980's and early 1990's with the advent of the commercial World Wide Web (Internet) and the subsquent explosion of email, that ESI really began to become the driver of the next big paradigm shift in eDiscovery.

Litigation Software and MagicWith the explosion of ESI in the 1990's, the technologists began to realize that there was a very lucerative and, in many cases, captive audiance (i.e. you can't hide from litigation) that needed software to drive ESI through the litigation process, find the specific data required, increase productivity and reduce costs (please note that I am not convined that the cost reduction criteria was real high on the list of benefits of the early litigation software vendors).  And therefore, almost overnight, a whole new industry was born and what I am referring to as the "magic" began.

In an industry that just 40 years earlier was barely dealing with paper, the introduction of ESI and the need collect, processing, find/search and review data was probably not that much different to many litigators than fire was to the early cavemen (no offense meant to cavemen).  The legal process (i.e. the courtroom and associated rules) had not changed.  However, the entire playing field of where most evidence came from and how it had to be handled and how it had to be presented was totally diferent. For all practical purposed, it was magic to most in the legal industry.  Remember that sufficiently advanced technology is indishtinguishable from magic!

Social Networking and Mobile Devices
Today, with the dawn of cloud computing, the era of email comming to an end and the exponential explosion of social networking platforms such as facebook, Twitter and LinkedIn (just to name a few of the big players) on mobile devices, the true era of ESI and the subsequent birth of true eDiscovery has really just begun.

To put this into perspective, there 30 billion pieces of content (e.g., links, photos, notes) shared on Facebook each month and there were 25 billion tweets sent on Twitter in 2010.  I could go on and on with the staggering statistics.  However, I think that we all get the point.  Social media has changed the world and as a result, the practice of eDiscovery will never be the same.

All of this being said, we are making tremendous progress moving from magic to mainstream technology.

Changes to the FRCP

On December 1, 2006, the way that litigants in federal civil lawsuits conduct discovery changed to reflect the increasing prevalence and relevance of ESI in legal proceedings. Prior to this change, many courts had been grappling with issues surrounding the treatment of electronic records discovery.  The new amendments to the Federal Rules of Civil Procedure (FRCP) in essence made it more difficult to use the fact that information is held in electronic form as a defense to fulfilling discovery requests.  The requirement that is implicit within the new eDiscovery amendments is that litigators must now plan ahead of time to better organize and manage their vast stores of information.

Pertinent Case Law
Zubulake v. UBS Warburg is a case heard between 2003 and 2005 in the United States District Court for the Southern District of New York. Judge Shira Scheindlin, presiding over the case, issued a series of groundbreaking opinions in the field of electronic discovery. Plaintiff Laura Zubulake filed suit against her former employer UBS, alleging gender discrimination, failure to promote, and retaliation. Judge Shira Sheindlin's rulings comprise some of the most often cited in the area of electronic discovery, and were made prior to the 2006 amendments to the Federal Rules of Civil Procedure. The relevant opinions in the field are known as Zubulake I... and Judge Shiendlin is now touring the country/world speaking on the merits of this case and how it has changed eDiscovery.

And, as time goes on, there are more and more cases everyday defining this new thing that we call eDiscovery and the associated technology.

Mainstream TechnologyWith the advent of "big data analytics", "cloud computing, "fatter/faster Internet pipes" and Software-as-a-Service (SaaS), the magic is wearing off and litigation and eDiscovery technology are headed towards becoming mainstream. Workflow models and associated methodologies such as the Electronic Data Reference Model (EDRM) along with standard data exchange formats and standard federated datastore formats, are all moving the industry to a point where it will normalize, become somewhat commoditized and costs will continue to come down.  However, that doesn't mean the industry will not progress with the magic comming back.

As an example,  the industry is in the middle of trying to figure out how to deal with all of the ESI in the cloud and at the same time wanting to move its tools and platforms to the cloud.  So, some are scared with with the concept of multi-tennant applications and whether or not they should go with private, public or some hybrid cloud infrastructure.  Others just think that this cloud thing will pass like some bad storm.

And, of evern more interest from a pure progressive software standpint, the current discussion/debate about "magic" in the industry is in regards to "predictive coding".  With vendor wars over patents and approaches and courtroom discussions/hearing about methodologies, algorithms and statistical significance, it is really heating up and providing some real entertainment for the peanut gallery.

As a litigator, you are probably in the wrong business if you don't love the continual progression of magic and the evolution to mainstream technology.  As a technologist interested in progressing information governance as whole, it doesn't get much better than the rapid succession of paradigm shifts that have occurred in eDiscvoery in our life times.  I love it!!

And, in the end, the real winners will be the legal system and those of us who have to deal with it.  As a result of all of this magic, litigation will be faster, more accurate and cost less (At least theoretically).

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