Document review? Nope. Data analysis.
Time for new “informational thinking.”
In a lively and informative ACED’s webinar on “Lawyer Competency in the Age of E-Discovery,” Craig Ball, the well-known eDiscovery consultant and Special Master, made what he called a “quick point” in his conversation with the Hon. Patrick Walsh, but it’s one that is at once so obvious and so overlooked—and of such import—that it bears not just repeating, but shouting out. Loudly. And often.
It boils down to this: in the eDiscovery realm, we’re no longer dealing with documents. We’re dealing with data.
“We need to have a consciousness-raising that much of the information that is most probative, most useful today in discovery never began its life as a document and will never live its life as a document except for the rather extraordinary and wasteful effort we make to try to force that data-round peg in to a document-square hole,” Ball said.
Email, tweets and database contents are not documents; they have characteristics that documents don’t in the way they thread and weave and relate to one another. They also carry metadata, which is as much a part of the content, and can be as informative as, the subject matter itself. Litigators who are not adequately aware of the implications of all this are missing an opportunity to apply tools and techniques that could be game-changing, unveiling key player relationships and sentiments, hidden subject matter, or the timing of events. In other words, evidence that could make or break the case.
In fact, the notion that so-called “document review” is literally that is a true barrier to effective and fruitful discovery as it deters counsel from availing themselves of either the appropriate tools (and best use of them) or the non-linear thinking that can bring to light the most meaningful evidence. Even keyword search, an extremely powerful weapon in the right hands, is hobbled when it’s conceived of as a way to cull documents rather than to mine data. Viewed in this light, seeking the assistance of professionals with expertise in data analysis and search methods makes much more sense than looking for experts in document review.
The wasteful effort of trying to force a “data-round peg in to a document-square hole” is clearly taking its toll in costs and risks for litigants, as the results of poor data identification, time-consuming linear review methods and ineffective keyword search are leading to sanctions from a bench whose technical sophistication is slowly gaining ground. Lawyers who haven’t caught on to this paradigm shift, who haven’t realized that it’s all about the qualities and idiocyncracies of data, not documents, are playing ping pong on a tennis court and will likely have their own competence called into question when eDiscovery issues arise.
As Ball points out, we need to bring a “new informational thinking” to dealing with modern ESI. The practical and ethical implications of lawyering in the dark when it comes to data awareness are not to be taken lightly. You owe it to your client to know, and know what you don’t know, about the world of ESI. This is part of the job now, like it or not.