Everything you wanted to know about eDiscovery, but were afraid to ask
The proliferation of PCs, laptops, smartphones, and even the Internet of Things have created exploding volumes of discoverable, electronic evidence. That growth in electronic documents threatens to break the discovery process. The only solution is to use equally disruptive technology to tame the challenges of modern discovery.
It may be hard to remember now, but discovery was once an analog affair. A large case would require mountains of cardboard banker’s boxes. Teams of contract attorneys would hole up in a conference room or stifling warehouse where they would read, one by one, every document, memo, receipt, accounting ledger, and record that was dumped on their desk.
In the late 1970’s and early 1980’s, the emergence of corporate computing began to slowly change this system. Volume wasn’t the problem yet—complexity was. No contract reviewer could be expected to make heads or tails of a computer punch card.
But then, in the 1980’s the desktop PC came into the law firm and lawyers realized they could use these machines to organize hundreds, or maybe thousands, of pieces of evidence.
In short, lawyers began to see the challenge and the opportunity afforded them by the desktop computer.
Indeed, the database technology that is still used by many litigators dates back to the early 80’s. One such platform, CT Summation, was first thought up more than 35 years ago. Jon Sigerman, founder CT Summation, writes:
In 1982, David Rotman and I conceived the idea for what became CT Summation. At the time, David was a megafirm litigation partner and I was a solo practitioner. Really, we combined our ideas for applying personal computers to litigation support. I had a docket of smaller cases, some of which at any given time were hot, while others were not. My desire was to have a system that made it easy for me to winnow each case down to a critical mass of evidence by clipping and assimilating excerpts of the key portions of documents or deposition transcripts.
David on the other hand, wanted a platform on his and his paralegal’s desktop IBM PC’s to index and archive potentially important documents and transcripts from a case.
Another discovery platform, Concordance, is almost as old. Concordance was launched in 1984, as a system that could offer full-text information retrieval on a personal computer.
These once ground-breaking tools still remain in use by some firms today. After all, Summation and Concordance may be approaching middle age, but the problems they were designed to solve still exist. In 2017, as in 1982, attorneys still need to narrow down mounds of evidence to the most critical documents and recall those documents as needed. But the technology was designed for managing documents, not strictly for eDiscovery.
By the turn of the millennium a few entrepreneurs and software vendors had recognized that the volume of evidence was a challenge. Reviewing it was a nearly impossible task with existing software.
To remedy the situation, document review software vendors began introducing new search tools designed to help make sense of it all. Not all of it worked. The most recognized member of this next generation is kCura’s Relativity, a review platform designed to help ingest, process, and review large amounts of electronic evidence.
At the same time, eDiscovery vendors began to proliferate. Vendors, making use of platforms such as Relativity, could help guide a firm’s discovery process, from data ingestion to production—often for a hefty fee.
Technology from this era allowed parties to deal with growing electronic evidence, but often in a way that was highly complex and, in many cases, prohibitively expensive.
Years later, these tools are reaching the limits of what is needed for modern litigation.
Since the start of the Computer Age, discoverable data has grown at incredible rates. The amount of digital information that attorneys needed to review in 1984, or even 2004, pales in comparison to the volumes of data available today.
There’s a reason for this. Moore’s Law posits that computing power doubles every 18 months. Since it was coined by Intel founder Gordon Moore in 1965, it has remained a relatively accurate predictor of processing power growth. As computational resources increase, so too does the amount of data that is produced. Indeed, according to Ion Stoica, a computer sciences professor at the University of California, Berkeley, data growth even outpaces Moore’s Law.
It’s an endless feedback loop: More processing power means more data, in turn requiring more processing power, allowing for more data. Consider the backlog of unread emails in your Gmail account. Gmail’s inbox size has made it possible to hoard millions of emails, which has in turn resulted in ever greater electronic document creation.
That’s just the tip of the iceberg. There are many places that ESI can be stored within an organization, either on-premise, in a data center or cloud service. It may reside in unstructured systems or structured systems, and may exist as active data, archived, legacy, or deleted data. Almost all of this data is discoverable in litigation.
As data grows at ever-increasing rates, the tools used to process and review that data need to be able to keep up.
Can your eDiscovery software handle...
Conversely, can the technology also handle cases with low document volumes?