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Fear and Loathing and E-Discovery: Is There a War Against E-Discovery?

Created on June 7, 2019

E-Discovery Market Analyst at Exterro

As a writer and blogger in the e-discovery space (albeit one with a background in writing, rather than e-discovery itself), I work with subject matter experts to create both practical pieces, geared at helping professionals do their job more effectively, as well as thought leadership pieces, trying to influence opinion in the realm of e-discovery and related disciplines, like information management and data privacy. I have to say, as far as recent thought leadership goes, Craig Ball’s article last week Have We Lost the War on E-Discovery? sets a high bar for the rest of us.

The jumping off point of the article is the idea that recent trends—both in e-discovery and in the broader field of information governance and data privacy—are in direct conflict with the goal of e-discovery, namely “to exchange information bearing on matters in litigation, particularly material tending to prove or disprove the parties’ claims and defenses.” These trends range from e-discovery education to the latest FRCP amendments, privacy regulations like GDPR, abuse of privilege, and new technologies that distract attention from the professional and competent practice of e-discovery (like blockchain, AI, and the Dark Web).

One doesn’t have to agree with every step in the logical train Craig builds to recognize that the overall argument is valid. Where 15 years ago, the courts and technologists were laying the foundation for the discovery of the facts as stored in electronic format, now much of the practice of e-discovery focuses on mitigating risk and managing costs.

I’m reminded of Hunter S. Thompson’s musings on the Summer of Love in Fear and Loathing in Las Vegas

There was a fantastic universal sense that whatever we were doing was right, that we were winning…

And that, I think, was the handle--that sense of inevitable victory over the forces of Old and Evil. Not in any mean or military sense; we didn't need that. Our energy would simply PREVAIL. There was no point in fighting — on our side or theirs. We had all the momentum; we were riding the crest of a high and beautiful wave...

So now, less than five years later, you can go up on a steep hill in Las Vegas and look West, and with the right kind of eyes you can almost see the high water mark — that place where the wave finally broke, and rolled back.

Perhaps the early days of e-discovery felt the same as Hunter Thompson did about the energy of the Summer of Love—that the world was lurching toward a better version of itself, more just and equal. Perhaps as Judge Shira Scheindlin’s Zubulake rulings fired a cannon shot across the bow of large corporations, e-discovery professionals felt as if the technology and processes they were creating might level the tilt of the legal playing field, giving individuals power commensurate to their privileged and/or corporate adversaries.

I don’t know; I wasn’t there. But given who’s paying the bills for technical e-discovery (largely corporate litigants who have skin in the game), and the fact that I’m a relative newcomer to the field, I can’t say the trends the article identifies surprise me. Movements get co-opted, then commoditized.

Where does that leave the dedicated e-discovery professional? Craig’s post suggests—and we would agree here at Exterro—that one of the best (if not the only) solutions lies in better e-discovery education, both for e-discovery practitioners and the larger legal community.

Hopefully the situation isn’t as dire as one might think at first glance. After all, across the nation, more and more states are adopting ethical obligations for technology competence, as Bob Ambrogi tracks on his LawSites blog. At Exterro, we believe that e-discovery technology should be accessible and usable by legal professionals, which is why we spend significant resources making our platform user-friendly and workflow-driven.

And while we’re not going to argue that managing e-discovery costs and timelines more effectively is a bad thing, we’re all on board with keeping e-discovery true to the spirit of the definition Craig provides—it’s about getting to the facts of a matter cheaply, quickly, and defensibly.