Welcome to Module 1-E .
The Intellectual Foundation of Electronic Discovery
Electronic discovery is a new, multi-disciplinary field of knowledge that arises out of the Law, but goes beyond it to include Information Science and Technology. It is a new type of intellectual fractal synthesis. It is emerging and self-organizing rapidly out of necessity to meet the many radical challenges imposed upon our system of justice by the rapid acceleration of technology. This class provides an important overview of the intellectual foundations of electronic discovery law, including the key technology drivers of this new endeavor. It begins with the ideas of Jason Baron and George Paul and their article Information Inflation: can the legal system adapt? This module also provides suggestions for online reading resources that students can use throughout the course.
Our writings and other forms of communication are being digitized at a dizzying pace. In one generation we have moved from a primarily paper based, tangible information culture, to a culture based on intangible binary code. We have moved from a society that stores and retrieves information locally in paper files, filing cabinets, books and libraries, to one that stores information globally in electronic devices and the Internet.
In 2010 I made a 6 minute video with Jason R. Baron, the Chief of Litigation for the National Archives and Record Administration, entitled e-Discovery: Did you know? The video uses trance music and the latest facts Jason and I could pull together to make the point of the rapid changes we are going though and its impact on the law. Sit back, turn up the volume, and watch.
Although the video is now out of date, the essential message still rings true. Also, with 20/20 hindsight it is interesting to see that our predictions have, so far, all come true. The video did not exaggerate.
The information explosion is profoundly impacting the law because information is the foundation of our justice system. We determine what is just and right based on the evidence. As Judge Scheindlin stated in Zubulake IV: “Documents create a paper reality we call proof.” Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212 (S.D.N.Y. 2003). For lawyers to adapt to this new world we need to rethink what we mean by documents, to understand and revisualize them as electronically store information. Then we will see the electronic reality we call proof.
As Jason R. Baron put it in the law review article he wrote with George Paul:
Information is fundamental to the legal system. Accordingly, lawyers must understand that information, as a cultural and technological edifice, has profoundly and irrevocably changed.
Information Inflation: can the legal system adapt? 13 Rich J.L. & Tech 10 (2007). Baron and Paul argue that litigators must move beyond the gamesmanship model of paper discovery into a more cooperative search for truth in e-discovery. They point out how the sheer volume of electronic documents makes this new collaborative model imperative. They do not suggest that the adversarial system of dispute resolution be abandoned entirely, just that the discovery model be changed. They also argue for the creative adoption of new technologies and records management systems by lawyers. They observe correctly that:
All this equates to perhaps the biggest new skill set ever thrust upon the profession – a revolution for the practice. What it means to be a lawyer will change rapidly in the years to come.
The Baron & Paul article begins by laying out the recent very rapid acceleration of information in the past few years, and places this dramatic increase in historical context. Writing has co-evolved with civilization over the past 50 centuries or longer, during which time there has been a slow but steady increase in information as our writing technologies slowly improved. Charted out on a graph, it would look like a gradual curve, as our writing moved from chiseled stone, to parchment, to the printing press. Then with the printing press there was a significant upturn, but still a curve. All of these forms of information are, in the author’s words, “recorded communications . . . confined to the physical realm – frozen in time as ‘information artifacts’. “ Id. at pg. 4. Then, all of a sudden, about twenty years ago, the slow curve spiked straight upwards.
The amount of information exploded as mankind invented new and much more powerful writing technologies, including “digitization; real time computing; the microprocessor; the personal computer; e-mail; local and wide-area networks leading to the Internet; the evolution of software, which has “locked in” seamless editing as an almost universal function; (and) the World Wide Web.” Id. at pgs. 5-6.
These new technologies allowed for an altogether different form of writing, free from all physical confines. Now the quantity of information humankind can create is virtually unlimited. They point out how anyone today “can distribute thousands or even millions of identical records in an instant.” Id. pg. 8. The authors refer to this as an “Information Ecosystem” which as a “whole exhibits an emergent behavior more than the sum of its parts.” Id. at pg. 7. They contend that:
Critically for law, such systems cannot be understood or explained by any one person. As a result, writing has now grown into something akin to a new “form of life.” Because of its long standing stasis and the importance of writing as a global technology, such a development may legitimately be said to herald a new phase of civilization. (footnotes omitted)
The authors compare the sudden spike in information to the rapid early growth of the Universe right after the “Big Bang.” They use the term “Inflation” in the same sense that many cosmologists use the term. Id. at 1. Unlike the economic meaning of inflation, in information theory, and many cosmologies, there is no countervailing deflation or recession. Our ESI, like the Universe itself, just keeps expanding, and there is no turning back, no downward adjustment. No one knows whether the amount of information we store will continue to increase forever at this rate, or whether the inflation may eventually slow down, or maybe even reverse. But we do know that, barring a major world disaster, an exponential increase of information is the most likely scenario for the rest of our lives, and so we had better learn to cope with this rapid change, and learn fast.
The authors then turn to the legal profession and consider how it is “confronting an inflationary epoch.” Basically the problem for dispute resolution attorneys is that the vast quantities of data involved in most cases make it impossible to find all of the evidence relevant to the case. We are forced to settle for limited information. To use the old parable, we are all blind men looking at an elephant, except that now the elephant keeps getting bigger and bigger. In the paper world of just a few years ago this was anathema to the legal profession. Discovery was intended to ferret out all of the key facts. We pretty much knew what we were looking for and where to find it. We would all strive for as much certainty as possible, and would routinely review all of the written records involved in a dispute.
Today, the word “all” itself becomes obsolete. In most large lawsuits today, the amount of ESI involved makes it impossible to gather all relevant information. Litigators have to be satisfied with retrieving some of the relevant evidence. To use a common analogy, you know you have a haystack to search through, but you have no real idea of the number of needles in it, if any. You could find one or two, and you may have them all, or there could be hundreds more. You will never know because the haystack is impossibly large.
For instance, in future suits involving actions by the current administration, the National Archives and Records Administration (“NARA”) estimates that by January 20, 2009, it will have custody of over one hundred million emails from the George W. Bush White House alone. Id. at pg. 12. The total number of emails in NARA custody will soon reach the one billion mark. To search through all of those emails would take a team of one hundred full time lawyers over fifty-four years. Id. at pg. 13. Assuming a very low billing rate of $100 per hour, the cost of review would be two billion dollars. As the authors point out, email is just the beginning; new forms of writing and communication are developing that will continue the flood, such as instant messages, voice mail, web traffic, wikis and the like. Id. at pgs.14-15.
The authors predict the legal profession will necessarily have to change and adapt new strategies of practice to cope with this information inflation. Here in a nutshell are their four predictions:
1. “There must be a change in culture among litigation lawyers.” What they call the current “game theory” behind litigation must end, and be replaced by strategic cooperation and transparency in ESI discovery and production. Lawyers will be forced to collaborate because that will be the only way to discover enough ESI related to a dispute to adequately evaluate the client’s position. The traditional adversarial mode of discovery will not achieve that end. As a specific example they predict what they call “virtuous cycle iterative feedback loops.’ Id. at pgs. 32-36. As I understand it, that means the parties will agree to a preliminary search method, which today is likely to be an agreed set of search terms. The parties will then try out the agreed search on a limited data set, evaluate and share the results, and then meet again to try to refine the terms for the next search. The next iteration of the search will incorporate the lessons learned from the last search, and so on, until the parties (or barring agreement, the court) are satisfied they have enough information to resolve the dispute (or the funds budgeted for the discovery process have been exhausted).
2. New search technologies and software will have to be employed to get a better handle on the overall size of the haystack, and find more of the needles that lie within. The current reliance on mere keyword searches will be replaced by much more sophisticated searches employing various types of concept and contextual searches, artificial intelligence, and statistical sampling techniques. The reliance on expensive human review will significantly diminish, and instead litigators will develop new skills and computer competence.
3. The law will innovate and change to face the reality that all evidence cannot be searched before production, and that no one will ever know if all relevant ESI has been located, much less preserved and produced. The law governing inadvertent disclosure of privileged information will have to change, and new more appropriate rules of waiver developed.
4. There will be a revolution in legal practice as attorneys fully incorporate the continuing advances of technology. This “equates to perhaps the biggest skill set ever thrust upon the profession. . . Lawyers must embrace creative, technological approaches to grappling with knowledge management as information inflation continues apace. Failure to do so will severely hamper the legal profession’s ability to meaningfully retrieve and process evidence.” Id. at pg. 3.
The new skill set needed to comprehend the electronic reality we call proof does not come easily. Many are unwilling to take the time and effort needed to begin to master the rudimentary elements of computer technology and information science. The younger generations have some advantage in familiarity with technology, but still most have never studied information technology and records management in college. Very few move from out of these disciplines into the law. Unfortunately, these subjects have been ignored altogether in law school. Until academia catches up with these new trends and radically alters curricula to match the new reality, most lawyers will have no choice but to try to learn these new fields on their own, or in CLEs. Those of you in this online course are one of a lucky few law students to be taught e-discovery. As such you may well end up teaching these CLE courses in the future.
The need to be improved, because most of the CLEs on information management and technology in e-discovery are sponsored by vendors, and have not so hidden agendas. They often make competing and confusing claims on what technology to use, and how to manage the flow of information. Until you have had a few years of experience with all this, it can be very difficult to sort out.
I expect (hope) that this online training program will serve to improve dramatically the quality of lawyer understanding in the areas of Information Science and Technology. The results here with the first students are very encouraging. This improvement will come in the context of litigation and e-discovery, but other areas of the law are also burdened with the flood of information.
Some good outside reading at this point to improve your understanding of IT includes the previously mentioned Sedona Conference, although most of the materials are legal, they do contain a heavy dose of IT. Other places to look and learn are Computer World, the IEEE Computer Society, the Association of Records Managers and Administrators, and many technology law review periodicals. For information science webs try: the Digital Library of Information Science and Technology, which is an open access archive for the Information Sciences; the Journal of Information Science; and, the American Society for Information and Technology.
There are many other more “fun” and entertaining webs and blogs where you can keep up with the latest trends and learn as you go, such as IT Wire, the ever popular WIRED, the venerable PC World Magazine, the hip SlashDotOrg, EnGadget, GigaOm, the Register, DIGG, and Tech Crunch, to name just a few. A few minutes with Google will uncover many more.
SUPPLEMENTAL READING: Read the Paul & Baron article in its entirety: Information Inflation: can the legal system adapt?
EXERCISE. Go to the websites linked in this module and explore each of them. Also, do you know what the Baron & Losey video says is the average number of texts messages that an American teenager sends in a day. Any idea how that has increased over the years since the video was created? How many do you send?
NON-MANDITORY EXERCISE: If you are interested, do some research on fractals and determine what they are, and what it has to do with iteration. Hint – think non-linear search and review, random sampling, and iteration. We will have another class on this.
Students are invited to leave a public comment below. Insights that might help other students are especially welcome. Let’s collaborate!
Copyright Ralph Losey 2015