What's Wrong With eDiscovery in 2020?

Posted by Tom O'Connor | Fri, Jan 03, 2020

Several months ago, the good folks at Digital War Room asked me to write several blog posts on technology topics that they wished to address. One of those topics was this one, and when it came up in our discussion, I said I was sure it would be topical because I fully expected it to be addressed in a conversation with a client before the end of the year. When I was asked why I could be so certain of that, I replied “because it’s come up at the end of each year for the past 4 or 5 years.”

Sure enough, yesterday afternoon I was discussing an eDiscovery project with a client and the issue reared its ugly head. The client dismissed the use of a new technology that would help streamline her workflow because as she put it, “nope, I’m going to keep on reviewing each and every custodian we sent a litigation hold one by one.” Why, I asked?

“Because that’s the way we’ve always done it!”

And that one simple sentence tells us everything that’s wrong with eDiscovery today just as it has been for years now. How many years?

Well much more than 4 or 5, I can confidently say that much.

 

In a recent article for Above the Law entitled Who’s Afraid of Machine Learning, Mike Quartararo, the President of ACEDS stated that many, if not most, attorneys, “... view predictive technologies like machine learning as unknown, unproven, imprecise, or incomplete. It’s the “black box” that either frightens or intimidates users.” He referred back to an earlier ATL article he wrote entitled Technology: Search Terms Are Dead. Or Are They? In which he posed this question to a few experts in the eDiscovery field: “The funeral procession for the use of search terms to identify relevant documents in electronic discovery began a long time ago. I think it began with Judge Peck’s DaSilva Moore opinion in 2012. So why is it that nearly eight years later search terms remain the number one means for fleshing out the relevant, non-privileged and proportional information in discovery?”

 

I myself hosted a webinar which talked about the reluctance by firms to move into web-based litigation support systems. In 2009!

Here’s what I wrote in preparation for that session:

Your current litigation support software may not measure up to the demands of today’s electronic document-based litigation. Why? Perhaps it’s built on 80’s technology and unable to manage large volumes of data. Maybe it can’t handle certain document types or foreign languages. Or maybe it’s just not all that easy to use.

Let’s face it. Some of today’s popular litigation support systems were designed and built back when Milli Vanilli was still riding high on the charts. These systems have attempted to keep up with the times, but, due to their architectures, they struggle under the demands of the ESI productions that firms are seeing today. And while most of us acknowledge these faults, we continue to use the old programs because that’s what we’ve “always used.”.

There it is again. “It’s what we’ve always used.” In 2009

 

And just a year ago for eDiscovery Day 2018, I spoke on a webinar about the same subject with Jo Sherman, the CEO of EDT Software, on the same subject. The focus of that discussion was what we called “... the failed promises of technology as well as the human failures of eDiscovery.” and we identified the real problem as not the technology itself, but rather the way in which lawyers use the eDiscovery tools available to them.

Or don’t use them. IT people in law firms jokingly refer to many technology problems as a “loose nut on the keyboard.” The tools are there, people just don’t use them.

I made this point again on eDiscovery day this year in a solo presentation I did called AI: Artificial Intelligence or Human Intelligence. A video of the presentation is available on my site The eDiscovery Channel on You Tube but the main thrust is that AI is one of many tools available to lawyers in the eDiscovery world that they just don’t use because they don’t bother to learn HOW to use them.

 

I wrote this in the follow up to the eDiscovery Day webinar a year ago:

“And isn’t this where we find ourselves now? Using not just old systems but old approaches. Collect everything, process everything, search everything. Analyze those results. Produce tiff files with extracted text and a load file. Use different software for each step. Why? Well that’s the way we’ve always done it.”

As that great philosopher Pogo once said, “we have met the enemy and it us.” The problem is us and the solution is right in front of us. Live up (at least in 38 states) to our newly established ethical duty of technical competence and learn how to use the many tools we have at our disposal.

 

Please don’t make me write this column again next year!!

 

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Topics: eDiscovery Trends

Written by Tom O'Connor

Tom O’Conner is an attorney, educator, and well respected electronic evidence expert. He has also written three books on legal technology and worked as a consultant or expert on computer forensics and electronic discovery in some of the most challenging, front page cases in the U.S. https://gulfltc.org/

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