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eDiscovery: Bobbing on the same old sea?

“Sea change” has become one of those buzzy concepts that creeps into conversations and articles much more than it probably should. It’s meant to evoke the notion of a foundational shift, a metamorphosis, something with its own momentum that sets a new direction with no turning back. Let’s face it, though, how often does that really happen?

One place that you might expect to find a sea change but won’t, at least not yet, is in the field of eDiscovery (although there are some who herald some sea change or other regularly). That foundational shift—a true change of course, not just the advent of better tools—hasn’t really occurred yet. This isn’t surprising. The legal realm is not known for embracing change, and in fact clings to precedent like a man overboard to a life raft.

That’s not to say there hasn’t been some evolution in the field over the past decade. There most certainly has. The imperatives of growing ESI volumes and myriad data sources made the sand too dense for head-burying—professionals have had to address certain realities, navigate  growing risks, make process adjustments. A group of active thought-leaders, including some notables from the bench, helped push eDiscovery concerns into the limelight, pressuring the community to engage in an examination of legal mandates and eDiscovery processes that raised awareness like never before. Richard Braman established the beacon that is the Sedona Conference®Studies like TREC Legal Track elevated thinking about the use of technology, drove the development of new tools, and gave thoughtful judges a linchpin for decision-making.

Eventually, even the rule makers, acknowledging the pitfalls awaiting a profession hesitant to leave a book-and-paper era for a more electronically complex one, came to recommend that counsel strive to up their technological competence lest they unwittingly make poor decisions that would irk judges and put their clients at risk. (See Model Rule 1.1).

But does any of this really constitute a sea change? The influence(r)s above undoubtedly drove changes of significant import in the field of eDiscovery. But the underpinnings of discovery, in both the legal realm and the technical one, seem thus far to have resisted the kind of transformation that would constitute a sea change. Despite apparent ethical soul-searching for a more just and efficient path, many lawyers still use eDiscovery as a tactic rather than a search for the truth, and some law firms still exploit that need as a potential revenue stream. Proportionality and cooperation are more often topics for endless debate and panel fodder, rather than precepts moving us toward a more fair and streamlined reality. It’s a shame, really. When eDiscovery becomes a barrier to the courtroom because the digital transformation we readily accept in other realms is stymied in this one, then access to justice can seem like a hoax.

Hopeful signs do appear, however. In a recent panel held at a showing of the Joseph Looby documentary The Decade of Discovery, we get this comment from the honorable Judge Schira Scheindlin:

“In the second decade, we’re not just dealing now with e-discovery on the civil side, we’re dealing with information retrieval in all its forms all over the place. Our whole society is changing, with big data, big collections, the analytics that can be applied to big data. We were not talking about that from 2000 to 2010—and that’s all we’re talking about now from 2010 to 2014. The field is completely changing.” 

No guarantees, but this kind of comment could be indicative of a sea change, one that would help the legal community align with ongoing changes in the corporate realm as companies are forced to adjust to their own electronic data realities. If we can really get it into our heads that eDiscovery consisting of linear document review is as anachronistic in the digital age as a rotary phone, and give up once and for all, as Craig Ball put it, “the extraordinary and wasteful effort we make to try to force that data-round peg in to a document-square hole,” then we might finally be getting somewhere.

Because it is that realization—that electronic content can and should be liberated from the constraint of a four-corned page and aggregated for textual analysis rather than “document review”—that would change the way we think about discovering evidence. When content can be interrogated and analyzed multi-dimensionally rather than reviewed linearly, it is a very different beast, and so is eDiscovery. Just this one change in perspective could lead to the paradigm shift a sea change requires. It opens up the potential for a new way of perceiving the discovery effort and makes the very idea of document-by-document review a real head-scratcher.

Time passes and things will change. There will no doubt continue to be evolution, if not transformation. But if we insist on thinking about and doing things the same old way rather than seizing the opportunity to create momentum around a more foundational change, then instead of reaching a tipping point that leads to a sea change, we’ll have to live with those agonizingly slow, incremental changes that come with the ebb and flow of the tide.

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