Right Discovery Staff Writer
eDiscovery has evolved into a process thought unimaginable in the last two decades, with the “e-” only being a recent development in litigations. With discovery expenses possibly making up 50 percent1 of costs in federal civil litigation, the process is never to be overlooked, and neither should its history.
Prior to the internet, legal professionals were forced to spend their days sifting through stacks of papers, sometimes dedicating rooms to hold their piles of documents, images, and other items necessary in the discovery process. With each printed page costing five to ten cents, legal professionals were quick to take discovery to the electronic world once data became more digital.
In the early 80s, eDiscovery software arose as the first of their kind, such as Concordance and Summation2, which allowed users to convert their data to TIFF, a file format stored as an image copy of paper documents. This process was as time-consuming and practical as the print process but was stored on a computer instead of printed format, making it easier to keep together and less difficult to lose.
As the internet developed, the 90s came with a myriad of platforms and software3, and so did the way legal professionals store and gather their data for discovery. The usage of spreadsheets, Cloud storage platforms, and database management systems became normalized within the discovery field as technology grew. Spreadsheets were the most common organizational tactics in managing eDiscovery but were prone to data entry errors, were among the most common organization tactics to manage eDiscovery. Database management systems were used for large volumes of data but the scalability made the management and deployment difficult and often required an additional subject matter expert. Lastly, Cloud storage platforms utilized quick and efficient infrastructure to process eDiscovery, but sometimes required additional IT training for the software. In all, these platforms assisted legal professionals in eDiscovery but came with major disadvantages.
In 2005, lawyers Tom Gelbmann and George Socha developed the electronic discovery reference model, or EDRM4 as a way to explain how electronically stored information (ESI) functions in the legal process, with steps to ensure legal professionals comply with federal regulations and avoid penalties or sanctions for missing deadlines or data spoliation. These nine stages revolutionized legal professionals’ understanding of eDiscovery processes and are still used as the most widely regarded eDiscovery reference tool nearly two decades later. Learn more about about EDRM by watching our Right Discovery Insights video, EDRM: The Foundational Framework for Conceptualizing the eDiscovery Process).
Since the EDRM, eDiscovery software platforms have become available for companies to use in-house or outsource from service providers. Software like Everlaw, Relativity / RelativityOne, and Reveal are created with legal professionals in mind to help organize, protect, and transform data into usable discovery.
A 2010 study5 compared manual review to technology-assisted review (TAR) and found TAR to be just as accurate as manual. In eDiscovery, TAR uses artificial intelligence to mark documents related to the search words connected to cases, a typically lengthy process for the average person. Two years later a New York judge6 was the first to officially approve the usage of TAR when conducting eDiscovery as it appeared to be "better than the available alternative, and thus should be used in appropriate cases." In 2014, TAR 2.0 arrived and made its way into many methods of eDiscovery, with a new “continuous active learning” quality that created superior results and fewer mistakes than TAR 1.0 when gathering data. The creation of TAR 2.0 led many of the traditional eDiscovery tools to become outdated and has overtaken eDiscovery software with its efficient methods.
As technology and AI continue to grow, so does eDiscovery. Legal technologists and software engineers actively work to develop innovative solutions to simplify and expedite the discovery process, aiming to create a more efficient and user-friendly experience for legal professionals and service providers alike. Their current attention stands on messaging data3, as it is increasing at a rate faster than it is becoming mastered by legal professionals. Messaging data contains a vast amount of metadata crucial in discovery, which is why legal technologists are finding ways to manage multiple messaging platforms into reviewable data formats through a single software. Natural language processing (NLP) is another area of exploration for technologists to refine the search results within eDiscovery for more relevant ESI in the research process. With these enhancements, and much more under wraps, eDiscovery will become shorter and easier even as data grows.
References:
1 Sullivan, Casey C. “Slow, Expensive, Lopsided Discovery Leads Court to Split Cost.” Logikull, n.d., www.logikcull.com/blog/slow-expensive-lopsided-discovery-leads-court-to-split-costs. Accessed 10 Jun. 2024.
2 Logikull, www.logikcull.com/blog/5-reasons-to-leave-legacy-ediscovery-software-behind. Accessed 10 Jun. 2024.
3 Singhal, Akshita, and Lianna Vaughan. "The Evolution of EDiscovery." Venio Systems, 31 May 2022, www.veniosystems.com/blog/the-evolution-of-ediscovery. Accessed 10 Jun. 2024.
4 EDRM, edrm.net/. Accessed 10 Jun. 2024.
5 Roitblat, Herbert L., et al. "Document Categorization in Legal Electronic Discovery: Computer Classification Vs. Manual Review." Journal of the American Society for Information Science and Technology, 9 Dec. 2009, https://doi.org/10.1002/asi.21233. Accessed 10 Jun. 2024.
6 Grossman, Maura R., and Gordon V. Cormack. "Technology-Assisted Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review." 17 Rich. J.L. & Tech 11, 2011, https://scholarship.richmond.edu/jolt/vol17/iss3/5/. Accessed 10 Jun. 2024.
Topics: eDiscovery, eDiscovery Software, ESI, Electronically Stored Information, AI, Artificial Intelligence, TAR, Technology Assisted Review, EDRM, Electronic Discovery Reference Model, Databases, Platforms, Technology, Software, Legal Professionals