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Many Practitioners “Dazed and Confused” over Electronic Discovery Definitions

Created: 24 Oct 2012 • 3 comments
Dean Gonsowski's picture
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The song “Dazed and Confused,” by legendary rock band Led Zeppelin, has a great stanza:

 Been Dazed and Confused for so long it's not true.

Wanted a woman, never bargained for you.

Lots of people talk and few of them know, soul of a woman was created below.

As I recently surveyed the definitions for “eDiscovery,” it occurred to me that lots of folks talk as if they know the definition, but few likely appreciate many of the subtle nuances. And, if you forced them to, many wouldn’t be able to write a concise eDiscovery definition.

The first, obvious place to look for an eDiscovery north star is the EDRM, which was originally responsible for creating the lingua franca for the entire industry.

EDRM (Electronic Discovery definition)

  • “Discovery documents produced in electronic formats rather than hardcopy. The production may be contained on hard drives, tapes, CDs, DVDs, external hard drives, etc. Once received, these documents are converted to .tif format. It is during the conversion process that metadata can be extracted.
  • A process that includes electronic documents and email into a collection of ‘discoverable’ documents for litigation. Usually involves both software and a process that searches and indexes files on hard drives or other electronic media. Extracts metadata automatically for use as an index. May include conversion of electronic documents to an image format as if the document had been printed out and then scanned.
  • The discovery of electronic documents and data including e-mail, Web pages, word processing files, computer databases, and virtually anything that is stored on a computer. Technically, documents and data are ‘electronic’ if they exist in a medium that can only be read through the use of computers. Such media include cache memory, magnetic disks (such as computer hard drives or floppy disks), optical disks (such as DVDs or CDs), and magnetic tapes. 
  • The process of finding, identifying, locating, retrieving, and reviewing potentially relevant data in designated computer systems.”

Gartner, the large IT analyst firm, proffers a different version.

Gartner (E-discovery definition)

“E-discovery is the identification, preservation, collection, preparation, review and production of electronically stored information associated with legal and government proceedings. The e-discovery market is not unified or simple -- significant differences exist among vendors and service providers regarding technologies, specialized markets, overall functionality and service offerings. Content and records management, information access and search, and e-mail archiving and retention technologies provide key foundations to the e-discovery function. More and more enterprises are looking to insource at least part of the e-discovery function, especially records management, identification, preservation and collection of electronic files. E-discovery technology can be provided as a stand-alone application, embedded in other applications or services, or accessed as a hosted offering.”

The Sedona Conference, which is the leading think tank on all things eDiscovery, has the following definition:

Sedona (Electronic Discovery/Discovery definition)

“Electronic Discovery (“E-Discovery”): The process of identifying, preserving, collecting, preparing, reviewing, and producing electronically stored information (“ESI”) in the context of the legal process. See Discovery.”

“Discovery: Discovery is the process of identifying, locating, securing, and producing information and materials for the purpose of obtaining evidence for utilization in the legal process. The term is also used to describe the process of reviewing all materials that may be potentially relevant to the issues at hand and/or that may need to be disclosed to other parties, and of evaluating evidence to prove or disprove facts, theories, or allegations. There are several ways to conduct discovery, the most common of which are interrogatories, requests for production of documents, and depositions.”

Looking at these in concert, a few things come into focus, aside from the vexingly diverse naming conventions.  First, the EDRM definition focuses (as some might expect) on the tactics and practice of eDiscovery. This is a useful starting place, but they’ve missed out on other elements, like the overall market dynamics, which are discussed (again not surprisingly) by Gartner. Gartner likewise addresses how eDiscovery is accomplished, referencing the need for software and the escalating trend of taking eDiscovery tools in house. Sedona (coming from a legal theory perspective) relies heavily on the legal definition of “discovery,” properly referencing its context in the legal process, a fact sometimes lost by practitioners that have expanded eDiscovery into other non-legal avenues.

These definitions are fine in the abstract, but even collectively they nevertheless fail to take into account several key points. First, as eDiscovery is quickly subsumed into the larger information governance umbrella, it’s important to stress the historically reactive nature of eDiscovery. This reactive posture can be nicely contrasted with the upstream concepts of information management and governance, which significantly impact the downstream, reactive elements.

Next, it’s important to recognize the costs/risks inherent in the eDiscovery process. Whether it’s due to spoliation sanctions or simply the costs of eDiscovery (which easily costs $1.5M per matter), the potential impact to the organization can’t be ignored. Without a true grasp on the organizational costs/risks, entities can’t properly begin to deploy either reactive or proactive solutions since they won’t have enough data for comprehensive ROI calculations. Finally, eDiscovery as a term has started to experience scope creep. What used to be firmly tethered to the legal discovery process has recently expanded into use cases where the process is now deployed in a number of similar (but non-legal) scenarios such as internal investigations, governmental inquiries, FOIA requests, FCPA, etc.

These additional aspects are critical for developing a comprehensive understanding of eDiscovery. And, while a comprehensive definition isn’t the final end game to this complex challenge, it’s certainly a better starting place than being “dazed and confused” about the nuances of eDiscovery.  Eliminating unnecessary confusion early in the game is ultimately essential to promoting and not hindering long term initiatives.

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Authored by: The Many Faces of Mike McBride » Blog Archive » This Week’s Links (weekly)

[...] Many Practitioners “Dazed and Confused” over Electronic Discovery Definitions [...]

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Authored by: This Week’s Links (weekly) | Webmasters' Home

[...] Many Practitioners “Dazed and Confused” over Electronic Discovery Definitions [...]

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Authored by: eDiscovery Definition Confusion is Common but Unnecessary : Stephen E. Arnold @ Beyond Search

[...] even when turning to those that are supposed “experts” in the field. According to the post “Many Practitioners ‘Dazed and Confused’ Over Electronic Discovery Definitions” on the Clearwell Systems eDiscovery blog, numerous and various definitions on the term [...]

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