Expectations vs. Reality: Ediscovery Edition

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Ediscovery as an industry, practice area, and ecosystem of technological solutions has rapidly evolved over the last decade and a half. As a result, many of the tried and tested assumptions held by even industry insiders (let alone newer entrants to the vast legal technology ecosystem) are no longer accurate. 

Let’s take a look at the top ediscovery expectations that no longer sync up with reality!

Expectation: Ediscovery is super expensive
Reality: Ediscovery technology can often save substantial time and money

At the outset of ediscovery, around the time of the amendments to the federal rules and initial inclusion of electronically stored information (ESI) in the discovery process, the technology that assisted in ediscovery was exorbitantly priced. In the decade and a half since the amendments, technology in ediscovery has become more powerful and more affordable. 

The cost to process and review a gig of data, once in the thousands of dollars (by one report tens of thousands) is a fraction of that and the volume of data in each case has at the same time exploded, making a manual human eyes on every document approach without the aid of technology cost prohibitive. Today leading next gen tech has brought the cost to process, review and produce a document down to pocket change levels while at the same time offering an ability to get impactful insights in a faction of the time. The availability of flat per GB or per document pricing that many next-gen ediscovery providers offer helps further contain costs today. The riskier and pricier option is to forgo using this great tech to supercharge your document review. 

Expectation: AI complex and hard to use
Reality: Next-gen tech has AI that is iPhone-easy to use

When “predictive coding” first hit the ediscovery airwaves, the legal market was slow to embrace this early application of machine learning/AI because the process was complex, opaque and prone to human error. Next-gen technology learned from the mistakes of their predecessors and began to roll out more user-friendly applications of AI, eliminating the need for complex training and seed sets as well as the reliance on unfamiliar concepts like precisions, recall, and F values. Today in next-gen legaltech platforms like DISCO, the AI workflow is as simple as toggling the AI switch for a topic to the on position. Much like Netfllix or Facebook’s “people you may know,” complex and powerful AI has been repackaged into an easy-to-use (hard to mess up) package that everyone from the most novice to the most veteran practitioner can gain value from. 

Expectation: Ediscovery is only good for big cases
Reality: Cases of every size can benefit from ediscovery tools

When ediscovery solutions still cost an arm, a leg, and your first born, it often was feasible to use the tools on smaller cases with lower document counts or dollars at stake. Today, even a small slip and fall case or divorce may have dozens of data sources and a substantial amount of ESI that surpases what a human can reasonably review. Additionally, as noted above, the cost barrier to using ediscovery tools has dropped substantially. As a result, even small matters can benefit from the time and cost savings that ediscovery tools offer. The same tech that helps clients with millions of dollars at stake and data volumes in the tens of terabytes can be as beneficial in a smaller matter where only a few thousand documents are at issue. 

Expectation: Ediscovery tools only work for litigation
Reality: Ediscovery tools are used in investigations to cyber breach, compliance, and more

While people may most commonly think of ediscovery tools as the domain of litigators, the need to quickly make sense of human-generated communication and documents (unstructured data) extends far beyond just litigation. Ediscovery tools help corporations that have suffered a cyber breach quickly identify and notify victims. And investigations both internal and government-initiated meet their razor-thin timelines by relying on the AI-powered next-gen technology that powers ediscovery tools. Ediscovery tools have also been embraced by compliance to identify problematic communication patterns before a whistleblower comes forward or internal investigation is even initiated. 

Expectation: Only big firms or companies need ediscovery tools
Reality: Ediscovery tools are a great force multiplier for smaller orgs to massive ones

This misconception, much like the belief that ediscovery is too expensive, dates back to the earliest days of ediscovery when it was extremely expensive, hard to do, and had limited applications. Today, organizations of all sizes frequently turn to ediscovery solutions to help amplify their reach against even the largest adversaries. Ediscovery tools are the small organization’s secret weapon and force multiplier, whether that means using AI to uncover the key facts of a matter early to determine settlement posture or case strength to using the full ediscovery suite of solutions to handle all aspects of a matter in less time and for less money. 

Expectation: Only an expert can use ediscovery tools
Reality: Not anymore! Many platforms are much more user-friendly and intuitive

Early iterations of ediscovery platforms were built with complex and not so user-friendly languages that required full-time system administrators to keep them up and running and to perform certain key tasks. And the early iterations of AI and machine learning, as discussed above, were complex and required time and expertise that many cases could not afford. Today, next-gen solutions like DISCO have ediscovery platforms where the user (from novice to expert) can do as little or as much of their case on their own through the front end of the technology and without having to employ non billable system admins. Resources like ediscovery consultants and project managers are still available to guide you every step of the way, but a savvy and motivated person can also effectively manage a case without having to bring in the big guns if they so choose. 

Expectation: Human review is the gold standard
Reality: Technology-assisted review and ediscovery tools are for more accurate just human 

For some reason, the legal industry has held steadfast to the idea that human review is the “gold standard” for ediscovery document review. And yet, the reality could not be further from the truth. The seminal article on the subject by Maura Grossman and Gordon V. Cormack highlighted the findings of years of exhaustive head-to-head comparisons of accuracy and turnover rates for human reviews and reviews that combined human and technology solutions, and found the winner was unequivocally not human only review. In the years since this article was published, the technology-enabled solutions have only become more powerful, accurate, and better able to parse the exploding volume of data in cases. This does not mean that ediscovery should forgo humans entirely, but that the manual brute force human only approach is nowhere near as powerful as when man and machine attack document review together! 

Expectation: Ediscovery is just for email
Reality: There are a wealth of new evidence sources ediscovery solutions assist with

In the beginning there was paper, and lot’s of it. Next came email, and the entire discovery process had to evolve to keep up. Today people communicate for business and pleasure using dozens of self-destructing messaging applications, social media platforms, collaboration tools, and more. If you do not investigate these new communications methods, you may miss critically important evidence, especially because people are often less formal and careful in communicating in these newer mediums and may divulge critical evidence that would not normally be contained in email. 

Expectation: Legacy ediscovery tools are good enough
Reality: Older tech may struggle with new ESI sources and cost more time and money

Many law firms and corporations have older legacy tools and a decade of resources devoted to supporting them. While many have the impulse to say, “But we have already invested so much in XX tool,” because of the sunk cost fallacy, this impulse to throw good money after bad can have major consequences in the total cost and time it takes to conduct your ediscovery. Holding on to outdated tech has a major hidden cost: the time and resources necessary to make an off-the-shelf solution with limited or no customization options work for the specific needs of your matter or program.The human and resource costs of making an inflexible tool or outdated tool work outweighs the benefit of not investing in better more modern solutions. 

Expectation: Legal practitioners must become tech experts
Reality: Legal experts need to learn enough to ask the right questions and use the right resources. You don’t have to go it alone!

With the ABA Model Rule of Professional Conduct 1.1 which stipulates (among other things) that lawyers must maintain technical competence and the proliferation of state level mandates for similar competency, it is easy to think, “Oh crap, maybe I do need to learn to code.” While that certainly is a great route for certain practitioners in certain practice areas, it is most certainly not the mandate for all. I like to compare this mandate more to a traditional skill set an attorney is used to honing, namely issue spotting. Lawyers must learn enough about the evolving digital dataverse and legal technology to understand when a technical problem arises, to ask pertinent questions and to bring in external experts when appropriate. Going it alone is most certainly not a part of the mandate! Think of it like in an antitrust matter: even the biggest HSR Second Request rainmaker would not try to build out complex financial modeling without an economist, so why would any other legal expert try to go it alone in the area of technology? 

These are just the misconceptions that came to the top of mind, but I am certain there are more. In this rapidly changing legaltech and in particular ediscovery landscape, staying up to date is sometimes challenging. Be sure to chat often with your legal tech partners, read the legal technology rags and of course feel free to bug legal tech dorks like me often!

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