What is the purpose of eDiscovery? If you were to look at many of the eDiscovery resources out there today, you might think that eDiscovery is about discovering documents or discovering data responsive to a litigation case or other eDiscovery use case. Or you might think eDiscovery is about leveraging technology and/or workflows to discover documents and/or data. But eDiscovery isn’t really about any of those things – it’s about discovering digital truth within your evidence. Here’s why.
Before there was electronic data, paper was the primary storage media and most business processes – not just discovery – revolved around paper. Paper documents were produced in discovery and productions in large cases could literally involve boxes upon boxes of paper documents that had been photocopied. When work product began to be created on computers and we began to communicate electronically through email, responsive documents were initially printed out to be produced before we adjusted eDiscovery workflows to produce those documents electronically, in image form. Emails and office files carried forth the “document paradigm” to which legal professionals had long become accustomed.
Today, the document paradigm is alive and well. eDiscovery platforms are document-centric, and review of evidence is called “document review”. As we have evolved into newer forms of electronic evidence, such as texts, collaboration app data, location data, and audio/video files, we have forced the “square pegs” of those newer forms of data into the “round hole” of the document paradigm. While you wouldn’t know it from looking at eDiscovery platforms today, eDiscovery is not about discovering documents.
Many people today say that eDiscovery is about discovering data. The data takes many forms today and even uses more data – metadata – to establish the authenticity of the data that is being produced in discovery. The further we push into the electronic world, the more we remove ourselves from a document-centric world, pushing us to discover the data in the form it exists to maximize the evidentiary value of it, breaking that document paradigm. Data is what’s being discovered today in eDiscovery, but eDiscovery isn’t about discovering data.
Workflows are at the heart of eDiscovery and that workflow process is best illustrated by the EDRM model. Considerations such as Big Data have changed how eDiscovery phases are conducted and how technology is utilized to conduct those phases, but eDiscovery workflows still involve identification, preservation, collection, processing, analysis, review, production and presentation of electronic evidence. Leveraging workflows is how eDiscovery gets done, but eDiscovery isn’t about leveraging workflows either.
If you were to Google “electronic discovery” the hits at the top of the queue belong to eDiscovery technology companies and you can’t conduct eDiscovery effectively today without leveraging the right technology. Cloud-based platforms and automated workflows (for everything from issuing legal holds to collecting electronically stored information (ESI) to processing that ESI to reviewing that ESI for relevance and privilege) are all technology-driven today. Advanced technological approaches that include AI and automation are enabling legal professionals to perform eDiscovery more efficiently and effectively than ever. Still, eDiscovery isn’t even about leveraging technology.
Discovering Digital Truth
Discovering documents and data is the “what” that is being discovered. Leveraging workflows and technology is the “how” the documents and data are being discovered. But eDiscovery (like anything else) is about the “why”. Why are we leveraging workflows and technology to discover data and documents? The simple answer is for the purpose of discovering the digital truth in your evidence.
Discovering the digital truth is the true goal of each eDiscovery use case. In litigation, it’s about discovering the facts within the evidence that prove or refute your side of the case, as UnitedLex recently did in identifying a “smoking gun” Slack message in this case. In investigations, it’s identifying the facts within the evidence that determine whether wrongdoing has occurred and by whom. Conducting eDiscovery as part of incident response to a security breach is about identifying the facts of what data was exposed and who was affected, including your clients. In each eDiscovery use case, the goal is to discover the digital truth within the evidence as efficiently and effectively as possible.
All the focus in eDiscovery on documents and data, workflows and technology are the “tail wagging the dog” – they are the ends to the means of discovering the digital truth and the facts that make or break your case. Discovering digital truth requires expertise to apply the workflows and the technology to an ever-increasing variety of data sources, using expert contextual analysis to apply workflows and technology to flush out the facts of the case from all those data sources.
To be more specific, discovering digital truth requires a combination of technical knowledge, legal understanding and project management ability to get to the facts efficiently and effectively. Most legal professionals don’t have this combination of skills – that’s why experts are needed in eDiscovery projects. There is no “Staples easy-button” in eDiscovery.
Ask yourself this question: Do you want to discover facts or retrieve documents and data? Discovering digital truth in eDiscovery is about identifying facts – it’s not about the documents, data, workflows or technology (nor has it ever been). The ability to apply a combination of legal, technical and project management expertise to successfully identify the facts of the case – discovering the digital truth – has always been the purpose of eDiscovery.
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