When you’re tasked with uncovering critical documentary evidence in a produced collection of electronically stored information, or ESI, you’re doing so to support a legal narrative that is the center piece of a case. In an eDiscovery setting, everything you do with respect to collecting, managing, and assessing ESI should be directed at finding the evidence you need to inform your legal narrative in a meaningful way. And to be certain, there is a story to be told in your collection that correlates to the theme(s) of your case. There always is.
I’ve been doing large scale forensic investigation in produced collections of computer-mediated communications and other business related electronica for over a decade. I’ve worked on some of the biggest class action civil suits in that time frame, related to everything from shareholder fraud to product liability, and if you know how and where to focus your investigation, you can find case-building evidence. Always.
When I first started investigating the communications and documents of Fortune 100 companies, I was amazed that smart and informed business people would go on the record and say the most brazen things. And not just rank and file employees of a large corporation, but higher ups, upper management, CEOs, people that one would think should know to exercise caution. The fact remains, there is a trove of evidence in a company’s electronic data. The digital artifacts of doing business in a computer-mediated world are full of critical information.
People talk, in writing, a lot. You can hang your company communication policy on the wall in front of them, but it won’t matter. Millennials in particular have grown up online. They have grown up communicating with people in every time zone, in every part of the world, about, well, everything. They write it all down. All of their opinions, feelings, all of their business dealings, all of their personal business. It all goes into a computer-mediated communication of some kind intended for an audience of some sort. Let’s face it, nowadays writing is really text-based speech and not simply a formal, graphical linguistic representation of a Language. And this communication genre creates the linguistic timeline of our lives.
Millennials entering the work force seemed to usher in a change in the very the nature of computer-mediated communication and documentation in a business setting. For example, I have witnessed an evolution in company email communication patterns over the years: In the late 90s, just as email started to really become the method of casual business communication, these communications resembled written letters. You would have a formal greeting, an introduction paragraph laying out the topic(s) at hand and consecutive paragraphs dealing with said topic(s), and a formal closing. You could expect standard punctuation conventions, as well as perfect spelling and grammar.
Now? Even formal business emails resemble a tweet: No greeting, topics laid out in a bulleted list containing around 100 characters, mixed content covering a range of both personal and business related topics, all rolled up into one communication, usually to several people at a time. Maybe capitalization and some punctuation, or maybe not. Actually, you’re more likely to see capitalization to indicate emphasis than to indicate a sentence boundary. Contextualizing IM-ese abounds, replete with lols and smhs (or LOL if the participants are really excited). All of these “non standard” writing conventions proliferate contemporary business communications at every level.
Forget the saying “never put anything in an email that you don’t want your mother to hear in a trial” (a 21st century version of a famous Sydney Biddle Barrows quote). Millennials put everything in writing somewhere, whether it’s on social media, their blog, in a comment section on a news site, or in a company-wide email. Their moms have already read it all. They talk with text and you can’t censor or “policy-away” these communication habits, even in a professional setting. Especially in a professional setting.
At some point, contemporary corporate information governance will have to accept these facts and deal with them effitively, but that is a post for another day. Suffice it to say, that in today’s eDiscovery ventures, you are going to have to deal with not only a large quantity of data, but data that varies mightily in quality as well.
During my tenure in the legal profession working in eDiscovery, I’ve learned 4 key pieces of wisdom about doing large scale text-based investigation for civil litigation support. I’ll be fleshing each point out over the next week or so, but here they are in a nutshell:
1) Document review and large-scale, discovery-driven text investigation are not the same thing. Comparing the two is like equating combing the beach using metal detector with an archaeological dig.
2) Language/linguistic expertise. You need it. This may not be received well by people in my profession, but it’s a fact. We use language to communicate. We use language to express ideas and opinions. Knowledge discovery at its very core linguistic in nature.
3) Technology and technical expertise is paramount. BUT all tech is not created equal and just because one tool/process/application works well in one particular context does not mean it will work in another. Specifically, you have to understand the limitations and margins of error with every tech solution you consider.
4) The future of eDiscovery is going to require innovation, ultimately resulting in a true marriage of human expertise and technical expertise. Oh, do I have a lot to say about this particular point…
Stay tuned for a discussion on each of these things individually. In the meantime, feel free to muse about any and all of these points in the comment section.