eDiscovery is the legal discovery procedure as it pertains to electronic data, from the preserving, processing, reviewing, and the producing of electronically stored information (ESI).
In the breakdown below, I searched for the best way to explain the foundation and tenets of eDiscovery, which is an ever-changing field by its very nature, for legal professionals who may not intend to become eDiscovery experts but want to know enough to be comfortable.
The findings were not what I wanted.
I hoped I would find inspiration to describe this seemingly complicated and cumbersome topic in laymen’s terms. Unfortunately, what Google gave me was neither inspiring nor enlightening.
The results were:
Perhaps I should not have been surprised. eDiscovery has posed a challenge to define. What eDiscovery entails changes as our technology changes.
As technology becomes more mobile, wearable, integrated, automated, the implications on what -- and how – data is collected gets more complicated. The more products that are discoverable by your Bluetooth or Hotspot, the more they (and their metadata) are discoverable in litigation.
Compare this to a decade ago when people used to print and mail paper letters or when you brought your camera into a bricks and mortar shop to get photos physically developed and printed, and so on.
I expect this might be why the search results were all over the place (and largely unhelpful).
What is metadata? Essentially, metadata is data about the data, i.e. the date data was created, the location where it was created, who created it, and when it was modified.
With the rise of technology and the Internet of Things (IoT), the types of metadata and the amount of metadata available have grown exponentially. This is part of what we call “big data”.
For example, we now have household appliances, cars, smart speakers, even workout equipment that create metadata. Much, if not most, of what we use today has computing going on somewhere in the background, which leaves or creates system-generated or user-generated files throughout our usage and interactions.
Information from these devices could be relevant and sometimes vital for potentially important litigation matters like an alibi. Think of metadata like the file’s watermark that speaks to the accuracy, relevance, and integrity of electronic data; but also think of it as the file’s breadcrumbs or usage history. Metadata tells the story of where and what a file has experienced, including its conception.
However, it is important to keep in mind that not all metadata is the same – not all file types have the same metadata, and not all systems record the same information. Sometimes metadata tells us that something is not the original or that it has been edited, but it doesn’t explain the why. Metadata alone couldn’t prove or disprove whether the evidence was intentionally spoliated. Though it could leave clues, metadata only really tells us that something that is supposed to be X, is actually Y.
The collection, interpretation, and review of this is made easier by the technology that has evolved in the eDiscovery space. Like the technology changes that we have experienced in our personal lives that have created the massive amount of Electronically Stored Information (ESI), the advancements also make all of this data easier to grasp in a litigation matter.
Different jobs demand different tools. Not all tools are necessary, practical, or particularly useful for all jobs.
Is a screwdriver always the right tool? For screws, probably. But it also depends on the TYPE of screw and TYPE of screwdriver. Everyone knows not to use a hammer to get a screw out of a wall, but what will remove the screw isn’t as simple as “screwdriver.” Would I need a Phillips-head or a flathead? A flathead could work for some Phillips head screws and, in a pinch, couldn’t a butter knife turn the screw just as well? The question you should be asking is, “which tool would work best for our particular job?”.
The same logic applies when considering eDiscovery technology. It all comes down to the specific requirements and priorities of the project, like cost, efficiency, flexibility, security, scope, and size.
There are dozens of document review platforms out there that could show you documents, but which one is intended for your specific circumstances? Which is most adaptable to changes? Which is most cost-effective short-term vs long term? What is going to work best for your specific needs and requirements?
Even more so than with the screwdriver example, it is essential to choose the right tool for the job when looking at the whole breadth of data and review for a litigation matter because the choices you make have to be defensible and hold up in court. And the right tool can even help with streamline litigation and save cost.
For document review, review platforms in theory are not that far off from iTunes or Spotify in that they are a database where we search, sort, review, favorite, add and remove files. A music playlist or a favorites list is no different than a document review’s privilege list inside a document review platform. Just as we sort and search our music to tag the songs, artists, albums that fit our criteria, we can tag electronic documents by custodian, date, department, location in a document review platform. Or better yet, use tags to filter all the data to get to just the documents we need, to the exclusion of the rest.
The main difference between the database functionality we all know and the database functionality for document review is how we search. That is called the Boolean Search.
Boolean Search is not unique to the legal industry. It’s a standard used by search engines and other platforms. Even so, may people do not regularly use a defined Boolean Search. For example, most of us just aren’t used to searching “classics” AND NOT “Rick Astley”, but it doesn’t take long to get the hang of it.
Document review platforms are places to sort, tag, view, redact and produce the relevant ESI. They are repositories, databases, no different in function and purpose than any other. You can look at through what you have and search through it for something specific.
Read more about how Ricoh helped Discount Tire make quick gains using eDiscovery Technology here.
The question I get asked most about eDiscovery technology is how does Technology-Assisted Review (TAR) work to help me review data quicker?
Let’s take our Spotify analogy two steps further. Instead of just a database to store our music and have playlists, we give some songs the “thumbs-up” or “thumbs-down.” The more “thumbs-down” narrows down the themes, styles, genres we aren’t interested in.
However, the algorithm isn’t just depending on our likes and dislikes. It's also tracking what we click on, what we watch and listen to, what we skip past, and more. All of this aims at curating what is most enjoyable (relevant) to each of us so that they appear the next time we log in. The algorithm is designed to understand our preferences and serve up more of what we like (and less of what we don’t).
This is what TAR does for the eDiscovery world. The platforms will either require a sample set (called a “seed set”), or the software will learn as it goes from your review of documents. It is learning what is relevant and what is not. You tag, the system loads a new set, you tag, the system loads a new set, this happens until the sets it is loading are almost entirely relevant. That’s when you know it’s learned based on the content, context and parameters of your review what to look for and what to discard.
As data volumes only continue to grow, it becomes more obvious how much technology affects our work (and workload) and that we are coming to a place where we cannot manage eDiscovery without technology. The more data that we accumulate with technology, the more technology is necessary to review it. When it comes to legal matters, eDiscovery – and the technology that supports it – is vital to doing business.
Learn more about Ricoh’s eDiscovery and Information Governance Services here.