Thought Leadership and Industry Trends
Why Is eDiscovery Important in 2017?
By Brad Janssen, Director of Advisory Services, CDS.
We are truly living in the Information Age. Data is being generated at an exponential rate by a myriad of different sources. Whether at work (with email, Microsoft Office, and PDF files), at home (with text messages, browsing history, and social media posting) or in between (BYOD personal devices), everything – even our watches and appliances (the “Internet of Things”) – are constantly generating data. All of this information can be discoverable and subject to the legal process to some degree. At CDS, eDiscovery is the process of assisting clients and their counsel in identifying, collecting, reviewing, analyzing, producing and presenting this data. We help clients build a narrative, construct legal arguments, and construct defenses with their data and documents. To us, eDiscovery means leveraging a number of workflows and technologies to help our clients get through this discovery process quickly, efficiently all while arming clients with the information, data points, analysis and higher level of understanding of their data that is required to win cases, settle lawsuits, and achieve the best possible legal outcomes.
eDiscovery is still a fairly new frontier in the vast legal landscape. The explosion in the amount of data being generated and how this impacts the legal process is something both small practices (who were previously often immune to “big data” concerns) and global law firms now face frequently. eDiscovery requires that legal professionals better understand data, how it is stored, how it can be searched, how it can be reviewed, and how technology can be applied to the discovery process to come up with innovative and cost effective ways to conduct document discovery and wade through the large volumes of data to find those key, “smoking gun” documents. While technology has created new challenges (larger data volumes), eDiscovery technology also makes the gathering and analysis of evidence and the formulation of complex legal strategies and narratives easier than ever before. There are so many cool technologies using artificial intelligence and machine learning that can be used to understand or analyze large data sets and glean important information from these data sets at speeds unachievable by humans alone.
Working in eDiscovery has solidified my belief that locating important (helpful or harmful) data and documentary evidence is still very much a cornerstone of the litigation and discovery process. Technological advances in areas like DNA identification and criminal forensics have had major impacts on the litigation and legal process in the recent past. As data volumes grow, legal budgets shrink, and legal software providers innovate, technological advances and a higher degree of automation on the document and data side of the litigation process will become just as important and wide spread.
I also realize that contrary to popular belief, there is a lot of room for creativity in eDiscovery and the litigation process in terms of what story can be told with (and in spite of) documents, data, and facts in a given case or investigation. I have been lucky to work with some very skilled attorneys and litigators and I’m always impressed at how they use eDiscovery and the eDiscovery process tactically to their advantage both offensively and defensively to help their clients.
Lawyers should understand that eDiscovery is neither a magic box (where documents go in and then a production comes out) nor a single piece of software or singular technology – it is a collection of tools, methodologies, and workflows that must be used in the correct way to achieve optimal results. eDiscovery is a science, and like any other science it can be studied, learned, and understood. We also stress to Lawyers the important of planning and creating even a basic Discovery strategy vs diving in head first into a large pool of documents. Just a little bit of time invested up front and the use of things like ECA and data analytics can save countless hours downstream and in the long run.
For laypeople, it is important for everybody to know that their data could be subject to the litigation or eDiscovery process at any time. Mobile phones, laptops, text messages, email, Facebook, and social media posting – you never know if or when your information can be collected, reviewed, and produced so watch out when creating documents and writing emails! Be conscious of this fact, be smart, and be informed.
Contact CDS today to schedule a consultation and see how your firm can improve its eDiscovery processes.
About the Author