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On the Virtues of a Platform Approach to E-Discovery: Thoughts on Complex Discovery's Drunks, DNA, and Data Transfer Risk in E-Discovery

Created on March 22, 2019

E-Discovery Market Analyst at Exterro

This post discusses Complex Discovery's excellent post, "Drunks, DNA, and Data Transfer Risk in E-Discovery," which I read for the first time yesterday. If you're taking the time to read this post, you should definitely check out the original on Rob Robinson's blog.

I think it's safe to say that recent entertainment, especially television, is awash in shows that deal with forensic science in one way or another. I know I've spent more than a night or two watching episodes of shows like the Forensic Files or the First 48, and given the amount of CSIs and similar shows, it's also safe to say that plenty of other folks also enjoy thinking about the science of how we solve mysteries. I expect that it has something to do with the reassurance we feel when a mystery is solved, but even the cases that don't get solved offer something instructive to viewers. We get to see how detectives use the tools at their disposal to get to better understanding of the facts of a matter.

Perhaps that's why his use of the field of DNA evidence in criminal trials is such an apt analogy to set up his discussion of human error in e-discovery. After all, e-discovery, while most often part of the civil litigation process, shares a similar mindset and process to traditional criminal forensics. Assuming that one agrees that there are some fundamental, objective facts (in a mystery, in a legal matter), the investigators deploy a series of technological tools, using an established methodology, to arrive at those objective facts and execute justice. And in both cases, improvements in the technology have made the truth feel closer, more grasp-able, more know-able, all of which is of course reassuring. 

But despite advances in technology, one element is consistent between both fields--people are doing the work itself... and people are prone to error. In the analogy Rob pulled from Leonard Mlodinow's book The Drunkard's Walk: How Randomness Rules Our Lives:

DNA experts today [2008] regularly testifiedthe odds of a random person's DNA matching a crime sample were less than 1 in 1,000,000 or 1 in 1,000,000,000. With those odds, Mr. Mlodinow noted, it is reasonable to think such a matching - if it occurs - may be beyond a reasonable doubt.... [but] the probability being omitted as part of DNA evidence presentation is the probability of human-based error arising from labs making errors in both the collecting and handling of DNA samples and in the accidental mixing and swapping of samples. These human-based DNA sample transfer errors - which many experts put at 1% - significantly affect the probability of matching DNA."

Our assumptions of accuracy, both in real-life and in our screen heroes, fail to account for the most likely source of error: us. Rob reminds us that for all the accuracy of our e-discovery tools, data transfers are a similar risk of error in the e-discovery process. This is not to say that any data transfers in the process are inherently a bad choice, as there is a balance between risks and available resources that must be considered in determining the optimal e-discovery process for any given organization. But in general, the conclusion he arrives at is an important one:

Yes, there are additional human-based risks in the electronic discovery process. And yes, each of these specific tasks (collection, analytics, processing, and review) may have multiple human-based risk factors – risk factors that can increase exponentially if data has to move back and forth between disparate technologies and platforms multiple times. But one irreducible fact appears to be that if one agrees that there is risk associated with human-based data transfer and that the percentage of this risk is determinant by the number of times such human intervention in data transfer occurs, then it is imperative for legal professionals to understand the potential implications of such risk at the beginning of the electronic discovery process and reduce it to as low a level as possible.  To do so is congruent with competent and reasonable preparation of data and this competence and reasonableness is critical to ensuring that electronically stored information (ESI) is of the highest quality.

This is a strong argument for limiting data transfers when possible and practical.

At Exterro, we often sing the praises of our platform technology. By using one e-discovery technology, from legal hold through early case assessment, collection, processing, review, and ultimately production, e-discovery professionals can save time and money spent on data transfers. Far less frequently do we talk about reducing the risk of human error, but this analysis called that to attention. Human error in data transfers has the potential to affect case outcomes negatively in many ways--perhaps the loss of metadata, or the appearance of non-compliance with legal hold obligations. The more opportunities for human error we introduce into the e-discovery process, the greater the risk.  

To learn more about how e-discovery platform technology can help your organization, check out Exterro's Comprehensive Guide to New E-Discovery Technology.