What’s a dog got to do with eDiscovery?

Odd question. Let’s canvas some characteristics of the U.S. e-discovery sector before pondering the answer.

The US e-discovery market is mature. Very mature. Many of the early pioneers who first made their mark 10 to 15 years ago are now passing the baton to a second generation of bright young e-discovery lawyers who are aspiring to senior ranks in law firms. Universities are offering e-discovery courses, service providers continue the endless cycle of mergers and acquisitions, our industry’s foundational metaphor, the EDRM has expanded to absorb the amorphous world of information governance and an increasing number of judges are hearing arguments about statistical linguistics.

The US market is, indeed, sophisticated. But has that sophistication led to unnecessary complexity?

“Things evolve to become ever more complex – not more simple”.

Lateral thinking provocateur, Edward de Bono once said “Things evolve to become ever more complex – not more simple”.

In his book, Simplicity, he explains that this is a natural progression. As human beings we are compelled to continually improve and that invariably means we tend to fine tune our focus upon the detailed aspects of a process that can be re-engineered and enhanced – the minutia. But sometimes this razor sharp attention to detail so narrows our focus that we lose sight of the big picture, the purpose for which the whole system came to exist in the first place.

In the context of technology this can lead to over-engineering. The most fundamental features that are needed again and again become obfuscated by convoluted functions that handle outlier scenarios that are rarely needed.

When software is over-engineered, even basic tasks become difficult and inaccessible for most users. Software becomes ‘heavy’ and cumbersome. Last week I watched a friend vehemently lament the fact that simply printing a document was an absolute ordeal because his new print management ‘app’ was so overly complicated by an glut of irrelevant functionality that he couldn’t trigger the basic function for which a printer was originally designed. He had a computer science major.

As processes become more complex they become hard to understand and even harder to explain to others. So, they become mysterious, even to those for whom they were originally designed.

“Where there’s mystery there’s margin”.

Tech entrepreneur and thought leader, Dave Berkus once said “Where there’s mystery there’s margin”. One perspective on this theme is the fact that it’s difficult for a client to question costs when they don’t understand what’s going on and don’t even know the questions to ask. That creates a fertile ground for inflated profits for those who have mastered and are, often inadvertently, perpetuating the complexity.

What’s this got to do with eDiscovery.. and the dog?

All this leads me to wonder whether we sometimes lose sight of the real purpose behind the whole e-discovery exercise.

The purpose is not to shuffle data through EDRM workflows or to process 5 terabytes a day or to review millions of documents as fast as possible. The real purpose of the whole exercise is, well, isn’t it to help clients find the key information they need to resolve disputes or manage investigations as effectively as possible?

Maybe you perceive an entirely valid, purpose that is different to this. But if you do agree that this is the real purpose then, do you think that sometimes, perish the thought, that outcome can be achieved without digital warfare? Can good, old fashioned lawyering a sprinkling of creativity and some easy to use software enable lawyers find the good stuff fast, without all the rigmarole?

In this context, there appears to be a significant difference between the way discovery (or, disclosure) works in the U.S. as compared with other countries, particularly Commonwealth countries. One of the major differences is quite simply the fact that outside the U.S. client pockets are generally not quite so deep when it comes to litigation budgets. There is not the same expectation of or preparedness to incur considerable expense. So, there is not quite the same potential for over-engineered solutions that invariably escalate costs. In many of these jurisdictions parties are encouraged by courts and motivated by cost conscious clients to find alternative ways to resolve their disputes or run their investigations rather than via digital wars of attrition. Yes, proportionality is supposed to prevent unnecessary costs but do you think that proportionality is sometimes actually, perhaps even subconsciously, determined not by reference to the issues at stage or the other valid criteria enshrined in the rules but rather by the depth of client pockets?

In summary, do you think the e-discovery tail is wagging the litigation dog?

If you happen to be attending ILTACON 2016. at National Harbor next week we’d love to hear your thoughts on this topic. Pop in to our hospitality suite to say hi!

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