Modern & Emerging Data Sources (Part 2): Declining Value & Meaning in Individual Documents

Monday, March 12, 2018 by Tom Barce


Smoking guns or key documents aside, establishing fully informed fact patterns, claims and defenses requires more extensive analysis of data sources than ever before. It could be nearly impossible to find out what happened based on a single communication as the modern work day frequently encompasses communications across different systems. For example, consider the sources of discovery that could result from an average, hypothetical dispute over the outcomes of a corporate transaction that involved the following background:

  • Representatives from the buyer and the seller met several times to discuss the transaction and records of meetings were in a cloud-based calendar system.
  • Traditional emails were exchanged to memorialize and follow-up on discussions.
  • Various telephone conferences were held and some key voicemails were left on VOIP systems that delivered copies of voicemails via email.
  • During pressing negotiations, key communications occurred between the seller’s CFO and COO via SMS text message.
  • Due diligence documentation was stored and exchanged using a cloud-based system and some copies were also transmitted on external media.
  • The buyer conducted extensive discussions and collaborated with third-party financial advisors using another cloud-based system with chat and file transfer capabilities.
  • The seller routinely used their internally hosted instant messaging system to collaborate across offices and business units to assemble material related to the transaction.
  • Much of the information that was assembled by the seller for due diligence was exported from a financial system and a separate human resources system.
  • Drafts and revisions to contracts were created and exchanged in multiple formats and saved on various local devices.

At minimum, eight different types of data, multiplied by at least the number of key custodians, involving at least three entities are all required to assemble the historical record of events, representations made and resultant decisions during the period leading up to this hypothetical transaction.

Competition between technology providers continues to yield a highly fractured marketplace where communication programs continue to proliferate. However, with a surplus of options, we should expect that technologies will continue to coexist lest they be suddenly and abruptly replaced. Therefore, the product and brand names you might consider synonymous with each of the data sources mentioned in the case study above will also multiply.

This very conceivable scenario demonstrates how compilations of unstructured, semi-structured and highly structured data collectively better represent present-day truth. Of course, this is further complicated by the frequent, interspersed use of these various communication mechanisms. Meanwhile, keep in mind that many of these facets of history are essentially stored in and across structured or semi-structured database systems. Properly collecting and leveraging these various data sources, focusing on highly structured information and logically organizing them in a functional review platform, can enable legal teams and technologists to leverage rich metadata to efficiently organize the facts and timelines.

Along the way, legal teams are sensitive to the simple fact that failure to identify, preserve and collect relevant data may increase the possibility for penalties or at least unwanted and costly scrutiny about discovery. The value of assistance from experts, custodian interviews or questionnaires and consideration of any data source that translates or saves relevant information needs to be thoughtfully weighed relative to the nature of the legal matter, the industry, jurisdictions, history, issues, claims, defenses and admissions.

Next, we'll examine key examples and types of modern and emerging technology that today’s legal teams and discovery experts need to consider, especially in highly regulated, litigious and emerging markets. Check out part one on this topic for more information.