eDiscovery Throwback

I recently happened across some early attempts of to become renowned for my legal technology "bLAWging" (as it was briefly known).

Originally though my idea was to start publishing actually useful things to the wider sphere about the new area I was involved in.

The leading article from 2006 was "Electronic Evidence Disclosure - a proactive approach", "Electronic Evidence Disclosure" was a thing, even though no-one specifically mentions it in this post.

The article can now only be found on the WayBack machine (I guess I should back it up given there's no WayBack machine for the WayBack machine)

Being the eternal geek, I will summarise, 13 years later, what has (or has not), changed in the time.

The burden of electronic disclosure

Perhaps not so dated, but the UK Civil Procedure Rules have been modified since then to the broadly similar:

"31.4 In this Part –

‘document’ means anything in which information of any description is recorded; and

‘copy’, in relation to a document, means anything onto which information recorded in the document has been copied, by whatever means and whether directly or indirectly."

The general principle though is that anything could be a document if it contains information. That would apply still to more modern systems like Slack and other cloud systems, but there is obviously much more complexity involved given the possession, custody or control of the document could be deemed to be in third party hands.

I like the simplicity of the statement still, "anything in which information of any description is stored" still applies to massive distributed cloud-based AI-enabled systems as it does to a simple Word Document.

Proactive preparation

13 years on and I'm still banging on about being proactive. Data mapping, data retention, preparedness, policies, security.... all still stands as a key challenge today. Very little has changed, however the problem of keeping control of these things has continued to expand beyond the capabilities of most organisation.

Targeted capture

iPods, PDAs and blackberries.

Ok, ok, this makes things sound a little dated. But to be honest... they all still exist and occasionally some old device turns up in investigations. We can swap them out for iPhones, android devices and cloud based applications.

In this paragraph I made reference to the CPR again. The particular relevant section of the latest CPR is

31.8

(1) A party’s duty to disclose documents is limited to documents which are or have been in his control.

(2) For this purpose a party has or has had a document in his control if –

(a) it is or was in his physical possession;

(b) he has or has had a right to possession of it; or

(c) he has or has had a right to inspect or take copies of it.

Also, the summary "Putting technology in place to assist in your answers to these questions is now more relevant than ever. Companies are at varying levels of maturity, but with the rate of change, they are almost certainly still behind with Compliance and Governance technology.

Data Scoping

Hahahaha. CDROMs. But sometimes they turn up still. Worth having a few spare old drives just in case. Tape still exists in a big way. But broadly speaking this seems to be the biggest area of change in the old article, quite obviously. In an up-to-date article I might write about cloud based systems, iPads, online messaging and collborations systems. I note I mention key terms as well.. we can be a bit cleaverer than that these days for sure.

I don't mention predictive coding TAR 2.0 etc, but then I guess its grown much more in recent years.

Reduce your volume

Identifying issues and relevance

Clearly I was a little confused back then, but the suprising thing about this is that near dupe, concept clustering and predictive coding did exist in 2006. 13 years later and it's still being considered as 'new'...

Efficient provision

Do the ridiculous specifications and demands of productions ever change? Will they? I think they will.

A lesson

Admittedly it's old case law, but still worth a read to see some of the origin of the changes made in discovery over the past 15 years. Zubulake was responsible in part for the burgeoning eDiscovery industry of today.

Conclusion

Still stands on it's own, no changes needed.

Disclaimer: Martin is still relatively young in his mind. This article is all my own opinion and experience and isn't necessarily reflective of the views of my current or previous employers. It is not an endorsement of advertisement of any product and I am not affiliated with any product mentioned. It may have been written by a bot. You tell me?

About Martin: Over the past 17 years I've worked with Law firms, in.house counsel and compliance and investigations professionals globally, to create and implement systems and processes to support investigations.