Exploring the Forests of E-Discovery
If a tree falls in the forest and no one is there to record it on their cell phone, did it really topple to the ground? Is the fall discoverable? What if it’s an electronic tree? What does our notion of reality, or the physics of falling trees, have to do with the legal issue of discovery? How do newer technologies for digitization and discovery affect the legal industry?
Obviously, I’m being facetious about the tree. However, the impact of technology on discovery is significant, both in terms of workflow and of cost. Discovery is a time-honored element of our legal system. It’s been a component of legal actions, it seems, from the beginning of time. E-discovery is the newer variant on an old legal practice.
Lawyers use the term “discovery” to describe the initial phase of litigation where both parties in the dispute have to provide each other with any relevant information, records, and other evidence. Before we had Word documents, PDFs, electronic chat, CAD/CAM drawings, and other digital content, discovery meant paper. Photographs of discovery frequently showed people carrying large cartons full of paper files out of office buildings. E-discovery is discovery applied to information in all those types of electronic formats we have today. The theory is the same, but e-discovery can also include raw data and metadata. Additionally, it opens up analysis opportunities impossible to glean from paper documents and massively increases the amount of discoverable content.
The Fallen Tree
Think about that poor fallen tree for a moment. What might happen if there were a legal dispute about it? Did it fall or was it cut down? Is it still there, lying on the ground, or did someone move it? If it was moved, was the move authorized? Did it fall over because it was dead? If so, was it a preventable tree disease that it suffered from? Was it vandalized by someone cutting into its bark? Does the fallen tree affect forest management? And who was to blame in any of these scenarios?
This may not be quite as far-fetched as you think. As I write this, in early December, the U.K. press has a story about the theft of very valuable Serbian conifers from a Scottish park. They were in a protected forest because they contain important genetic material. They have no monetary value and the theory is that someone cut them down to turn them into cheap Christmas trees. The destruction of scientific data was unintended and probably unknown to the thieves, but has very real consequences for scientific research.
E-discovery actions related to our tree in the forest might include forest management records, policies and procedures regarding forest maintenance, emails about the trees in the forest, any visits by tree doctors, correspondence concerning the state of the forest and its trees, photographs and videos taken of the tree along with other trees in the forest, personnel records, and lab notebooks of research into trees conducted by anyone connected to the forest.
Once upon a time, discovery might have centered on only one fallen tree. With advances in technology and the predominance of electronic information, discovery motions now affect entire forests, sometimes even forests where trees didn’t fall. It’s no secret that our society has become increasingly litigious and, concurrently, a steep increase in the amount of information demanded in discovery has occurred. As more data is required, costs inevitably rise.
Moving E-Discovery In-House
As Mike Hamilton points out in his white paper, the prevailing trend for law firms is to bring discovery work back in-house, reducing how much they outsource. Advances in machine learning, predictive analytics, and technology assisted review make previously tedious tasks done by humans more palatable. It adds a new level to discoverability as well. Computers work faster than humans and can go through a large amount of data produced by discovery in a relatively short time.
Workflow automation plays an important role in a successful implementation when bringing e-discovery in-house and is a prime argument for doing so. Hamilton sensibly recommends starting with a full internal audit to determine current processes, costs, and constraints before jumping at the in-house option. Following the audit, be prepared for changes in job descriptions and job responsibilities. Some staff may need additional training about e-discovery. New competencies are likely to surface. You need to work with your human resources department on these changes in workplace duties.
Cost and risk reduction frequently drive the trend from outsourcing to insourcing. But it’s shortsighted to think that no new resources will be needed. In fact, investment in new e-discovery technology is part of the process. Hamilton identifies five key technologies as investment necessities—legal project management, pre-collection analytics, targeted collections, in-place processing, and technology assisted review. Taken together, they shouldn’t break the bank or prevent the in-house implementation of e-discovery.
Seeing the Forest and the Trees
The old adage about not seeing the forest for the trees could apply here. The trees (not any fallen ones) represent the outsourcing previously prevalent. It can become too easy to concentrate on managing the outsourcing companies while losing track of the overall forest of the e-discovery process and failing to see the benefits of bringing e-discovery in-house.
Wait, I think I hear a tree falling in the forest. Quick, grab your cell phone so we can photograph the event. Then we’ll know it really happened and make the fall e-discoverable.