Intellectual Foundation of Electronic Discovery

Sierpinski Triangle Fractal

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.  This new fractal synthesis is emerging by necessity to meet the many radical challenges imposed upon our system of justice by the rapid acceleration of technology.

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.

This revolution is necessarily having a profound impact upon 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 stored information.  Then we will see the electronic reality we call proof. 

As attorney and information expert, Jason Baron, put it in the law review article he recently wrote with attorney 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 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 are ignored altogether in law school.  Therefore, 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. Unfortunately, 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 decades of experience with all this, it can be very difficult to sort out.

I expect (hope) that the quality of continuing education for lawyers in the areas of Information Science and Technology will improve dramatically in the next few years.  Most of this will come in the context of litigation and e-discovery, but other areas of the law are also burdened with the flood of information.  In the meantime, we will all have to struggle and do the best we can on our own, attending seminars given by vendors and others with a healthy dose of skepticism. 

One good place to start is the 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, the GigaOm, the Register, the DIGG,  and Tech Crunch, to name just a few.  A few minutes with Google will uncover many more. 

I am still looking for other good sources, especially good old paper books on the subjects (easier to read after hours in front of a terminal), and from time to time will post information about them here.  If you have any good suggestions, please feel free to let me know by email or post a comment here.  But please spare us the commercials.  I will quickly delete any such comments anyway, so save yourself the time.

3 Responses to Intellectual Foundation of Electronic Discovery

  1. Arjun Thomas says:

    Rather interesting article, very informative.. thanks for the post.


  2. […] Part of the answer has to lie with the incredible advances in technology that we have seen in our lifetimes. Society has transformed from a nation-based industrial world, to a global-based computer world. The rapidity of this change in civilization is unprecedented in human history. The transformation has had profound effects on the nature and quality of evidence, and the process to find this evidence. See: Information Inflation: Can The Legal System Adapt? 13 Rich J.L. & Tech 10 (2007). In fact, e-discovery is born out of this paradigm shift in the law. See: Intellectual Foundation of Electronic Discovery. […]

  3. […] Part of the answer lies with the incredible exponential technological advances occurring over the last twenty years. The concept of society has transcended the paradigm of a nation-based industrial world, to that of a global-based techno-centric world. The rapidity of this change in civilization is unprecedented in human history. This transformation has had profound effects on the nature and quality of evidence and the processes necessary to root out this evidence. See: Information Inflation: Can The Legal System Adapt? 13 Rich J.L. & Tech 10 (2007). In fact, e-discovery was birthed from this paradigm shift. See: Intellectual Foundation of Electronic Discovery. […]

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