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eDiscovery:The Challenges and Opportunities of Disparate Data

25 February 2021

It should come as no surprise that as the world continues to progress digitally and even more technologies emerge, data volumes and types continue to grow exponentially. From a litigation standpoint, this means we are challenged with an ever-evolving set of sources for discoverable information.

Emails, office documents, instant messages, SMS, and WhatsApp are all "fair game" yet only scratch the surface of the data types crossing the desks of eDiscovery professionals today - and tomorrow only promises more data and more challenging formats.

New data types affecting eDiscovery

Keeping up with the idiosyncrasies of new data types is, in itself no mean feat, let alone understanding their relevance and significance. Beyond the common sources that inherently gain the legal teams' consideration today, we are increasingly experiencing not only the demand, but also the need and value of the sources of tomorrow.

Not that many years ago, mobile phone data was the new source on the block alongside instant messaging apps, both personal (WhatsApp, Facebook Messenger, WeChat, Telegram) and enterprise (Lync, Skype, Google Messenger, Bloomberg, Reuters). We also began considering call recordings and structured data sources such as FX transactions, buy/sell orders, and we are seeing even more joining this growing list. To put some numbers around this, in 2020, 2.5 quintillion bytes of data were produced by humans daily and by 2025 an estimated 463 exabytes of data will be generated each day.

This burgeoning list of data types comes with its own set of issues that can make things even more complicated and, as a result, can become a roadblock to an efficient review without a reliable eDiscovery solution.

How does disparate data impact eDiscovery and Managed Review?

In the context of  discovery and litigation, all of the broadening new data that is and will continue to be produced by an expanding technology landscape will present a variety of new obstacles. Staying on top of the new data types is like playing a constant and never ending game of catch-up. With trends leaning towards a rise in businesses moving to a remote working model in the long-term, data types will likely grow even more varied as additional communication and collaboration tools are brought to the fore.

In other words, consolidating, understanding, and reviewing modern data types is an entirely different beast than it once was. Back when all discovery was conducted on hard copy documents, there was only one way to read the documents, however, with the amount and variance in the data present in litigation today, there are an infinite number of solutions in play. This new age of data promises more complex and unfamiliar data types that will prove to be a formidable undertaking for legal teams to analyse in any volume. Now and going forwards this will require strategically managed workflow review plans that properly account for the challenges presented by significant data type variances.

The plot thickens!

Today, the technology landscape for eDiscovery tools, designed to process and review these growing data types, is just as exacting and perhaps even more demanding to navigate. The list of these tools is growing almost daily, some representing entire eDiscovery solution ecosystems and plug-ins whilst others are independently run analysis tools. Determining which tool(s) to invest in to combat your eDiscovery challenges of today and tomorrow costs an organisation time and money, whilst also creating the risk of an expensive mistake.  Beyond selecting the "right" tool(s), there is the additional complex investment of developing a resilient, quality assured, and experience-backed process alongside the on-boarding of resources that can effectively deploy, manage, and support those tools. There is no use in buying a Formula 1 car and then asking untrained and unskilled  person to drive it.

So, with this exponential growth of data showing no signs of slowing down, and an over-saturated litigation technology marketplace, the key is knowing how to evaluate which tools will solve your unique eDiscovery challenges.  These constantly evolving landscapes will continue to shift like sands in a desert but for organisations that solve this technology, people, and process puzzle, the potential for savings through efficiencies are significant.

In short, as the scope and types of data continues a seemingly boundless upswing in the future, legal teams will need to meet these associated challenges with an equally dynamic and tech-enabled solution.

Authors: Katie Harvalis & Seth Hughes.

Further Reading