eDiscovery is Dead… or is it?
“Is Electronic Discovery (eDiscovery) dead?”
I have posed this question on several of the last panels I have moderated, and after the hush lifted from the crowd the results have been mixed. One thing, however, that was consistent across the board: something big is happening in this strange industry we call home.
The rapid shifting of the Dataverse, the evolution of eDiscovery tools and realization that just because something is in the eDiscovery box does not mean we cannot use it for other business purposes are all colliding in a shift of what we mean by the term eDiscovery.
I am not the first to pose this evocative question, Martin Nikel broached it first in 2018 and again two years later. The question I pose to you dear reader, has the day arrived to say RIP eDiscovery and coin a new term for what it is we do with unstructured data analytics?
The Four eDiscovery Horsemen
The four horsemen of the demise of eDiscovery (as we know it) include: the rapid transformation of the data-verse away from document, eDiscovery functionality applied outside of the litigation silo, and a reimagining of the eDiscovery workflow, and the rise of a new generation of tech savvy legal professionals. has the rise of these three horsemen sealed the fate of an eDiscovery-pacolypse? Let’s dig deeper to find out.
The First horseman: Death of the Document in the Data-verse
Electronically stored information (ESI) has undergone a rapid and wide-ranging renaissance in the last several years with the volume, variety and velocity of data reaching uncharted territory. The most notable shift has come in the form that these new ESI take.
The Short format, visual components, and continual nature of the emerging messaging applications, social media platforms, and collaboration tools do not fit nicely within the four corners of a document.
EDiscovery software providers and legal practitioners alike are struggling to adapt the paper-inspired eDiscovery process to these increasingly common atypical data types. From the outset of the litigation hold and data collection to normalizing the novel file formats even getting this data into the traditional workflow has posed challenges. Some tools, like Slack, did not even have a process in place initially to collect and preserve potentially relevant ESI.
Finding relevant documents in these not quite document-like data formats also poses challenges:
- Where should the “document” unit in a slack conversation break?
- How should it be visualized in the review platform,
- How can the visual content effectively be handled throughout the eDiscovery lifecycle
- How can you avoid spoliation when the data is designed to be ephemeral?
These questions and more highlight the cracks in the EDRM when applied to things that look much less like a document than email does. Legal technology has caught up with some of these challenges in the last few years, but the underlying question of should a paper-based conceptualization of the eDiscovery process persists.
The Second Horseman: Going outside the eDiscovery Box
Electronic data challenges are not something unique to litigation or legal investigations. So, it should come as no surprise that great tools designed to connect the dots in human-generated data (unstructured data) have recently found applications outside of legal discovery and in some cases outside of the legal profession completely.
I often note in my panels that the language of business today is data, and we are drowning in it. The we in that statement is not merely lawyers or eDiscovery professionals. Savvy professionals in information security, compliance, employment, and more are increasingly taking the powerful unstructured data analytics from eDiscovery and applying them to other areas of human-created data that they need to quickly understand and parse.
New applications of eDiscovery technology include:
- Finding Personally Identifiable Information Post breach
- Continual Compliance Monitoring
- DSAR Responses
- GDPR Compliance
- FOIA Requests
- M&A Due Diligence
- Internal HR Investigations
Basically, whenever an organization needs to quickly ingest, organize, analyze, and report on large datasets or metadata, eDiscovery software can get the job done quickly.
The Third Horseman: eDiscovery Reimagined with AI
Artificial intelligence-powered advancements in the technology-assisted review and data visualization aspects of eDiscovery software have dramatically supercharged time to insight. The power of Machine learning and AI lead eDiscovery solutions is reimagining the workflow applied to uncover insights in a data set.
Early case analysis and interactive layered approaches to using things like social network analysis, concept clustering, conceptual or semantic search and more are forcing some to ask whether the EDRM itself ought to be reimagined as well.
The linear approach of brute force analysis is long gone as the default review workflow. But even the more traditional technology-assisted review workflow is evolving as the technology becomes more powerful and investigative in nature.
Document review itself is less about categorizing every document and more about quickly gaining insight into the risks and opportunities present in a data set. Understanding the who, what, when, where why and being able to make informed decisions thereafter.
Considerations around proportionality and concerns around data privacy coupled with the more powerful tech and increasingly complex and voluminous data volumes are also tipping the scale in a more investigative approach to uncovering insights with AI-powered tech. Think more laparoscopic than triage, precise and minimally invasive.
The Fourth Horseman: Rise of the Digital Natives
At the inception of adding an “e” to discovery, it made the utmost sense to create workflows and technologies informed by how practitioners managed paper discovery. Email was not so different from the snail mail that preceded it and practitioners had grown up in a sea of paper. So, building a workflow that mirrored the paper made sense.
This is not the case for the generation of legal professionals attending law school and paralegal courses today or even for many of the associates making up the ranks of big law to solo, in-house to the regulator.
The legal professionals today are digital natives, accustomed to relying on technology in a myriad of ways in their personal and professional lives. And, more importantly, fluent in the types of new media that are proliferating eDiscovery.
The lawyers making up today's class of first to fifth-year associates may never have seen a bates stamp or received a cut from a reweld stiffed in a banker’s box because they have not ever conducted paper discovery.
So why are we trying to bind the emerging data types that differ so much from the paper predecessors into the four corners of a document and a workflow designed for it?
Digital natives are increasingly open to incorporating atypical data types, ai-powered technology, and embracing workflows that may throw the traditional l EDRM on its head! And this is just the beginning of their proliferation in the ranks of attorneys, paralegals, and litigation support professionals!
Is eDiscovery a Phoenix?
Asking whether eDiscovery is dead may be slightly disingenuous n that it is an industry trending towards above $20 billion and shows no sign of slowing. The need to understand ESI and quickly uncover digital evidence is going nowhere anytime soon.
That being said eDiscovery as the blanket term for unstructured data analytics is unfairly boxed in the industry. As what we uncover, the tools and processes we use to do so and the industries and use cases all continue to evolve perhaps it is time to also evolve. Like a phoenix, something more grand and powerful might rise from the shapes of a term that we are surely close to outgrowing.
What Will Rise From eDiscovery’s Ashes?
Discovery, with or without an “E," is a critical component of any litigation. I could see a future where perhaps eDiscovery is demoted from the umbrella term to a subcategory. But then arises the question of what next? Legal Tech is not narrow enough for what we as an industry undertake. so, something in the middle is likely what will come next.
Recently at a master’s conference here were some of the ideas that were floated:
- Unstructured Data Analytics (not the sexiest but probably my favorite)
- Data Interrogation
- Investigative Analytics
- Electronic Data Analytics (EDA)
- Information Analytics
- Digital Analytics
- Information Analysis
None of the above seems to perfectly fit, without as my good friend Bill Potters of Rampiva noted “about two paragraphs of explanation.” Do you have a more compelling idea for what the next chapter of eDiscovery might look like? Or should we let sleeping nomenclature lie?