Discovering ediscovery

18 July 2014 by Adrienn Toth

One of the biggest battles we face in this industry is to explain, easily, in just one or two sentences, exactly what we do and why it is helpful.

Funnily enough, this affects lawyers as well as ediscovery experts, as they are usually the ones who must introduce the subject to their clients.

It is easier to explain ediscovery to those who have been through the process. At least they understand it somewhat, even if it is only that “people are interviewed, documents are collected and then the documents magically appear on a computer screen for me to read them”. Most people, however, have never had the experience, which we must be mindful of.

It is difficult to quickly encapsulate, in an exciting way, all of the hard work and expertise that keeps the ediscovery ship afloat. If you don’t believe me, try and do it in a way that does not involve a lot of background setting. See if your children or nephews or nieces have the patience to listen to you without going cross-eyed or distractedly rooting through the cupboards in search of more Loom Bands.

It is an alien and dizzying concept to a lot of people and this is a pity, because to know that there is such a thing as ediscovery and that it is a highly developed practice, with a community of highly skilled experts could be very helpful…one day.

I notice this more acutely in the summer months, as I mentally prepare myself for the most difficult conversation of the weekend. It is posed by a friend of the neighbours living next-door-but-one, at their family barbecue: “What do you do?”

The next time it happens, I think I might try some of the following replies:

Did you see that scripts and footage from the new series of ‘Dr. Who?’ were recently leaked?

I love this style of reply. The subject is familiar, topical and nerdy enough to prepare the examiner for a really special answer. Anyone interested in ‘Dr. Who?’ will be excited just enough to make further enquiries, giving the chance to say how ediscovery techniques could help to establish how a data breach occurred, who was responsible and the impact it had.

There may even be time to explain why the last James Bond movie contains the most technically accurate representation of gathering all data from a laptop (compared to CSI and other TV programmes). Don’t push your luck; your tee-total grandmother may well excuse herself on the pretense that she needs to refill her Pimms glass.

Also, try to cover the necessary detail before you finally admit that you were not instructed on this case. It’s a crushing anti-climax to an otherwise interesting introduction.

I speak and write about a topic called ediscovery

Well, it’s certainly true. Just this week my colleagues and I had the pleasure to work with Damian Murphy, a very knowledgeable barrister specialising in ediscovery and an excellent collaborator. As a panel of four, we addressed an audience of around 90 at the Compass Law Commercial Litigation Conference in central London on the topic of “Ediscovery : And Now for Something Completely Different”. We spoke on the (very serious) subject of best practice when planning and budgeting for ediscovery and how to avoid getting ‘Mitchelled’.

‘Perfect case management’ is the Holy Grail and this inspired us to highlight the (very silly) connection between ediscovery and Monty Python. Not many people saw it at first and arguably, even fewer saw it afterwards. At the very least, it was ‘completely different’.


We save money for companies when they carry out investigations

In every language, in every business, in every discipline, people understand money and at least this prompts the question ‘How?’ (if it doesn’t, then sorry; you’re on your own).

I don’t know if anyone else has noticed that it’s difficult to get people excited about ediscovery.

Whether you are a lawyer advising a reluctant client to use an ediscovery service, or an expert telling your mother in law what you bring to the family, when that person asks ‘How?’, it means that they are engaged and interested in learning at their own pace. That is more powerful than a long-winded elevator pitch or preaching why everyone needs something that only a privileged few have ever heard of.

There is often gold to be found in the papers

Of course, there is another angle to this and that is that in litigation or investigations, there is often gold to be found in the (electronic) papers. Maybe, ediscovery is really about finding the case winning evidence early enough to avoid a disaster. More about that in a future post ….