eDiscovery is Dead! Long live eDiscovery!

This is the 'clickbaity' title you were waiting for.

From the eDiscovery vendor space, through lawyers and General Counsel to IT leaders and technologists. I've had significant feedback from many of them on the original post.

The premise is clear. eDiscovery is Dead.

• Major cloud systems providers are creating the functionality for firms to deal with their own eDiscovery challenges with ever increasing success. Native redactions and in-built AI and other Computer-Aided learning techniques. For instance, Office 365 Advanced eDiscovery and Google Suite GVault
• The vendor space is consolidating to reduce costs and increase efficiency, at the same time diversifying by rebranding into other LegalTech and and Legal Operations fronts. See Mergers & Acquisitions and an example of Diversification
• Insourcing is continuing to happen at a faster rate as a technological rebirth hits in-house legal operations and compliance departments. They all need to be technically astute and innovative. And show real value from it. See In-Sourcing Litigation and Legal Operations building a professional name for itself

This is as true for eDiscovery as it is for many other technology specialisms. The technology is getting smarter and easier to use. You don't need an eDiscovery or Digital Forensic expert to press "go" on the eDiscovery button.

Without leaving the topic to an over-sensationalised, causing heavy career contemplation by many lawyers and technologists, by explaining the years of thinking behind the headline I can perhaps aim to dissolve the panic a little.

My internal thought processes are laid bare and it goes without saying this is my own opinion and not necessarily shared by my employer. Please stay with me. It's a longer than usual post, but it has a point, I think...

eDiscovery is Dead.

Do I care?

Technology... it doesn't stand still. But people and organisations, inevitably do.

I've been 'guilty' of standing still. Wondering why I didn't stay on top of this trend or that development. But there's so much of it I often suffer from lack of focus or even nausea at the constant information overload.

Over many years I've been involved in many interesting areas of technology and law.

Creating an early Public Key Infrastructure for dermatology referrals in the NHS, investigations and interviewing in places as wide ranging as Kazakhstan, Hong Kong and Croydon, designing and implementing an Industry Regulatory Portal for lawyers globally, Analysing and managing the design of an eCommerce website for a bank, Mapping the global data landscape post-bankruptcy of Lehman Brothers, Scanning and coding workflow software development and more recently AI systems design and development.

My point? Although I'm known to work in eDiscovery Operations... I'm not an eDiscovery one-trick pony with some processing and document review knowledge.

And neither should anyone in any profession singularly specialise in one area without constantly reinventing and reapplying that same learning in other allied areas. It doesn't need to consume you. It doesn't need to be about technology, but everyone needs to be a little ahead of the curve at times.

The Curve

Although I have an innate fear of being 'behind the curve' (whatever the curve is and whoever it's defined by), I've always been flexible and open to change and learning. It means should someone say to me "we should look at TensorFlow and OpenCV" I know two things:

1. They don't know anything about TensorFlow and OpenCV.
2. You can be damn sure that I will know far more than most by the following day.

Technology excites me and I'm as passionate about it as I was when I opened up the case of the Wang 8086 (with 10mb Winchester hard drive and dual 5.25" floppy disk drives) that my father brought home from work because his boss didn't know what to do with it.

At the age of 8 in 1986 when this machine was still new, my brother and I decided that if some "big shot businessman" didn't know what to do with it, then we would find out. And we did.

Even as a paperboy I created new sidelines to the main role of delivering newspapers. I began taking orders from the customers and doing an additional round delivering the items people had forgotten in the shopping the night before.

"So what!?", I hear you cry. Well, there are two points I'm trying to make here. One is blatant self-promotion and geek-one-up-man-ship (it is social media after-all!).

And the other: So what if eDiscovery dies? I can do a lot of things! Do I care?

I do care.

But not specifically about eDiscovery (of course it has a soft spot after 16 years). What I do care about and what has been a constant theme from the age of 'whenever I first got a Sinclair Spectrum', are some simple questions.

"How does this work?" and "What can I use this for?".

The degree I took focussed on Human-Computer Interaction in a social sense. Change and impact management. My dissertation discussed the concept of change for change's sake and how the best ideas can fail without considering the constant impact of changing interactions, roles and technological progress while the 'system' is still being implemented.

I extended "How does this work?" and "What can I use this for?" to include "What impact will this have?".

The world of work for me was like this: Paperboy, McDonalds, PC World, self-employed bookkeeper, NHS, Started University, Warehouse, NHS, Self-Employed Web Developer, Left University, Web-based Systems Analyst, Law Firm Litigation Support, Forensic Computing, eDiscovery consultant, eDiscovery Team Manager, eDiscovery Director, Global eDiscovery Director and right now.. Consultant. Each has been a level-up. And with each level I moved my thinking:

People and Technology...

... then People and Processes....

...then People and Systems...

...then People and Change...

...and then the Eureka moment, People and People.

So what do I care about? I care about the people in the equation. I care about the impact change has on them. I care about the changes providing value and assisting an organisation working more collaboratively into the future. Let's cast that idea over the changing world of eDiscovery.

With an increasing rate of change in the technology (the 'simplifications' actually breeding increasing complexity). Mountains of information to "eDiscover", completing business priorities and directions, changing laws, regulations and privacy demands, cyber crime and the primary need to be on top of it all... (and breath!)...

Most organisations I have the pleasure of working with are masters at some or all of the first three 'People' combinations - Technology, Processes and Systems. They have good people, good technology, good process and a great system that it all fits into. And yet there are still failures in that system.

If they have the people, the AI-enabled push button technology and good processes, where do these failures come from?

It leaves only one constant eDiscovery issue, that can't be solved by technology, that I can focus on and will always be present. Communication.

Communication

Despite the accelerating pace of change, the move to big cloud systems, the consolidation of the discovery market place, the 'race to the bottom' and the move to in-source, the one problem area that I have recognised as common throughout is communication:

• Between lawyers and technology people (the line is blurry)
• Between Outside counsel and vendors
• Between Procurement and vendors and internal departments
• Between Compliance and Legal and Investigations and HR departments
• Between the board and everyone
• Between People and People.

An example

And the key to communication between people is all about understanding the other persons frame of reference. Their 'Weltanschauung'. The original intent of the instruction has been 'Lost In Translation'.

When I say “get Jane’s messages”, what does it mean to you? What does it mean to the in-house lawyer? What does it mean to the Office 365 specialist? What’s does it mean to Jane!?

Broadly stereotyping: The requestor wants all Jane’s communications relevant to a time period about a particular topic. The in-house lawyer interprets this broadly and makes a request for “all of Jane’s emails between x and y date”. The Office 365 admin interprets this literally and performs a search for only emails and only those emails she has access to.

There’s nothing wrong with this. There’s going to be data that fits the category “all Jane’s communications”. But the literal interpretation of “emails” by the in-house lawyer has likely missed out on instant messaging, phone messaging, voicemails, Yammer, OneDrive and all manner of other mediums of communication.

There’s no context for the Office 365 admin to explore elsewhere because she’s the email admin who looks after live mailboxes. So we’re not exploring the Domino email system that was migrated the previous year. And we’re not going to be looking at gaps caused because the archiving was offline. The requirements of the litigation are not in her frame of reference.

And the level to which this can be surmounted depends entirely on the established and regularly updated process being well defined and the level of “professional curiosity” of each individual involved. It’s even more nuanced and complex than I can convey with my over-simplistic example.

Regardless of the changing landscape, the push button solutions, the consolidation and lowering prices, the mainstay of the eDiscovery problem I seek to solve is going nowhere fast. eDiscovery might be dead or dying as a technology process, but the increasing complexity and communication hurdles mean it will live on as a high-level leadership challenge that will continue in various forms and will evolve into ever more interesting and exciting 'adventures' that I'll happily stay involved in and passionate about for many a year to come. At least five more years anyway.

eDiscovery Is Dead, Long Live eDiscovery!

HTH,

Martin

About Martin: over the past 16 years I've worked with Chief Legal Officers, General Counsel, Compliance Professionals and ‘Big Law’ firms globally, to provide, create and implement systems and processes that reduce the likelihood of failure during a crisis.

Disclaimer: this is all my own opinion and isn't necessarily reflective of the views of my current or previous employers.