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July 12th

Video Killed the eDiscovery Document Review Star

Cat Casey
Cat Casey

Video Killed the eDiscovery Document Review Star

The Buggles “Video Killed the Radio Star” was the first music video to ever play on MTV back in 1982... and the paradigm shifting impact this simple 3 minutes and 21 seconds had on the music industry was unmistakable. In much the same way, the way that humans communicate, and not just in song, has shifted in a monumental way towards much more visual and video-based content in the last few years with the introduction of more video and visual based communication platforms. Visual content, unlike more traditional written electronic documents like email, does not lend itself easily to the four corners of a page that most review platforms are built to support in Electronic Discovery.

Much in the way that Radio cannot readily translate the vibrant colors, gyrations and visual nuances of a music video, many legacy platforms struggle to capture the nuance, context, and impact of visual communication today. Does this mean that doc review and Litigation support is facing the same demise as was foretold about radio stars?

Not necessarily.

But it does mean that Doc review stars that want to maintain their sparkle must rethink the process, technology and workflow that is used to review, analyze, and extract insight from this sort of content... those that opt not to may find their star falling. While those that adopt and adapt to video-based content may find that their doc review star is born... or reborn!

 

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Flavors of eDiscovery Video Stars

The explosion of new communication platforms, and integration of visual content into legacy ones has shifted the content and format of electronically stored information (ESI) facing case teams today. Visual ESI today can come from a variety of platforms, from social media and collaboration tools to gifs embedded in plain old email. Understanding the new visual digital landscape is the first step for law firms and in house counsel alike to tame the video beast in their discovery requests.

Visual content has permeated written communication of all types in the last few years—most notably with the influx of short format communication platforms, emojis, GIFs, and more. The dramatic impact this non-text-based content has on e-discovery and human review conducted to uncover insights is staggering. Thankfully, e-discovery tools increasingly possess functionality to help practitioners identify, classify and review images in a near native manner to preserve context and accelerate time to insight.

 

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Old School Social Media

Social Media giants like Instagram, Facebook, Twitter, and even good old LinkedIn have a proliferation of a variety of visual content and user counts in the billions each. From static images and video content to infographics, Gifs, Emojis and more. All woven throughout the platform. To uncover relevant information across the billions of user’s profiles and communication your discovery process must have a way to manage the visual presentation and capture of relevant metadata for this nontraditional ESI. Legal teams must turn to search technologies with some level of computer vision to identify, search and analyze visual content with the same dexterity as if it was written content.

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New Kids on the Social Block

Even more than many legacies social media platforms the new kids on the social block are almost exclusively video and visual based content. Behemoths like Facebook are seeing upstart platforms like TikTok reach a billion users in a fraction of the time that it took for them to do the same and the advertising spend on these new platforms highlights the risk of litigation and investigations relating to this video centric content. Legal teams ought to ensure they are scoping for this visual evidence when conducting case assessments and that the tools leverages in their eDiscovery process can effectively render the visual ESI.

 

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Slack Attack & Teams Dreams

Collaboration platforms like slack and teams have completely thrown the concept of a document on its head. Short format and never-ending channels that people can pop in and out of are so far from the four corners of a document that it is laughable. Add to that the ease in which users can embed video, gifs, and emojis and you can begin to understand the challenges this new source of ESI poses to even the savviest eDiscovery team.

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GIFs, EMOJIs, and Stickers, Oh My!

Across all the new communications platforms and legacy alike, the introduction and proliferation of GIFs, Emojis, Avatars and Stickers have moved even more traditionally text communications like email into the visual domain. Text and other short format communication is especially susceptible to these little pictures being added as punctuation... and increasingly they are showing up in courtrooms, which has given rise to some challenges for review teams and platforms alike. 

The headaches these little images can create are not insubstantial. Differing phones depict emojis differently, interpretation is highly subjective, and not all review platforms are equipped to support rendering emojis in anything like the native format. Does the money bag imply bribery or good luck? Is the eggplant a message about eggplant parmesan for dinner or sexual harassment?

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Zoom Boom

Post covid, long format video recordings and embedded images, emojis and more in the chat logs of video conferencing platforms like Zoom have created their own data explosion for uncovering relevant documents or videos in recent review projects. Computer vision, or machine learning algorithms and AI models that can “see “like a human and identify, analyze, or search video-based ESI are helping legal professionals mine video heavy data sets and conduct case assessments in a cost-effective manner.

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Smart Stuff & Wearables 

The internet of things has leaps onto the visual stage in a big way in the last several years. Video doorbells alone like the Ring and Nest comprise an over $2 Billion market composed of tens of millions if not hundreds of millions of video connected devices. These residential home visual recording devices pose a wealth of potentially relevant ESI and an equal volume of questions as it relates to data privacy and accessibility of the data. Despite the quandaries this evidence poses, cases have already erupted on just these devices.

Body cam footage from devices worn by police and protesters alike has been pivotal in cases in the past few years as well, highlighting the likely increase of long format video feeds in need of Ai to identify key moments, actions, or statements in what might be a visual data set spanning days or weeks. Document Review of raw video footage can be extremely time consuming and costly unless the legal team leverages cost effective application of computer vision to parse this type of visual evidence is hugely beneficial for individuals and law enforcement alike.

 

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Youtube and Plain Old Video

Video content, whether it is long or short format is still a massive stand-alone ESI source. Every single minute over 500 HOURS of video content is uploaded to YouTube alone. With the ever-present and increasingly clear video functionality on smartphones, YouTube and Vimeo and a myriad of other video sharing platforms and social media platforms are also now awash with real-time livestreams and videos documenting everything from the mundane to the catastrophic. Increasingly, video hosted on these websites is being investigated to uncover critical video evidence in civil and criminal cases.

 

Becoming an eDiscovery Video Star

The proliferation of visual based evidence is not showing any signs of abating, and if anything, the newer methods of communication from short format massaging to collaboration tools and next-gen social media rely more on video content and not less. This combined with the increased focus of the bench on proportionality lends itself to an increase in legal teams’ use of AI powered tools that make use of computer vision to identify and search data combine with other technology assisted review workflows that can accelerate time to evidence even when that evidence is pictures instead of words and phrases.

Litigation support teams in law firms and case teams in house alike can take some steps to prepare for this visual deluge including:

  • Incorporate visual evidence sources into ESI eDiscovery scoping at the outset
  • Ensure data retention policies and legal hold notification extends to visual ESI sources and visual content within traditional ESI sources
  • Confirm that your review platform and search technologies leverage computer vision
  • Verify that your eDiscovery methodology is optimized for visual ESI and not just electronic documents and that the eDiscovery case team is prepared for visual evidence.
  • Validate what video, emojis, GIFs and more look like within the review platform selected by the eDiscovery team
  • Review what work product and production including visual evidence will look like from the selected review tool
  • Leverage visual analytics to connect the dots in large and disparate data sets

 

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Vision for the Future

Thankfully, many of the former barriers to leveraging video evidence (cost and complexity of managing the video data in review) have been greatly reduced by tools that incorporate computer vision and AI by default, and this wealth of potentially relevant data is increasingly prominent as a result. Ensure that you and your legal team are prepared for document reviews and eDiscovery that will extend beyond the four corners of the electronic document at the outset to stay ahead of the curve.

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