In my last post I asserted that document review and large-scale, discovery-driven text investigation are not the same thing. I said that comparing the two is like equating combing the beach with metal detector with an archaeological dig. Now I want to flesh out this analogy a bit to underscore the sentiment behind it.
In the first endeavor, you show up at the beach with your tool, maybe having mapped out a long stretch for exploring, or maybe breaking up the search into smaller, defined areas, or perhaps you just planning on walking as long and as far as you can in the time that you have. Then you start making passes and sweeps across the sand with your detector, hoping you find something interesting. You may find a coin or a ring, but you never know what sort of treasures you’ll dig up and put in your pocket. If your lucky, you’ll stumble across something valuable. If not, the most you can say for your day is you got some exercise.
In the archaeology example, you use your expertise and experience to carefully pinpoint the location of the dig. You understand the nature of the terrain, which in turn informs the types of your tools and your methods of excavation. You have an expectation of what you’re going to uncover. You know where to look for certain artifacts. You have a point of reference for what you’ll find because you know what type of site you’re excavating before you ever disturb the soil. For example, if you’re excavating a dwelling structure, you immediately recognize a pottery shard as such and you set out to uncover the rest of the pieces in the immediate area in order to reconstruct the entire artifact. You proceed in a principled manner, recording your findings and placing them in a larger context of discovery. Finally, you assess the artifacts you’ve uncovered in a larger context, one of an entire culture or a historical point in time.
If you’re tasked with finding evidence in a large produced collection, no day should go by where you don’t uncover valuable information that supports you case narrative in a meaningful way. Document review isn’t an exercise in reading, just as combing the beach in search of treasures is not an exercise in, well, getting exercise.
Finding documentary evidence in a produced collection of ESI should be a dynamic, flexible endeavor that represents the intersection between various tools and methods and the right kind of expertise. Discovering case-winning information should not simply be a linear process by which a memo or an email or a sales slide is read, categorized by checking a box, and moved off of one pile onto another. Categorizing documents as “hot” or “super hot” is not the same as deriving facts and intel by way of meaningful, data-driven forensic investigation.
I have seen it happen all too often that huge review endeavors begin with a certain set of expectations and objectives only to uncover information months down the line that changes the course of everything, rendering efforts up to that point counterproductive. Large, resource-intensive review efforts may or may not be what is needed to uncover winning documentary evidence, but regardless, where the review team is the army, the forensic text investigators are the scouts. We ride out ahead of the army and find critical intel and facts that inform overall strategy in the most productive manner possible. We uncover information and find investigative leads quickly, which can transform the very nature of your case. We find the story in the documents that underscores your legal narrative.
Look, document review and large scale analytics (predictive modeling, etc) may be a valuable part of your eDiscovery strategy, but if you want to be ahead of the curve, as well as save time and money, you should recognize that you have options. You can hire investigative experts that will tackle your collection to find out: What did they know (and who *they* are), when did they know it, and what did they do about it. And we will have a variety of tools at our disposal, as we will use any and all applications or processes (often making our own tools) that we need in order to extract critical, case-building information.
Knowing the difference between reviewing and investigating, and including both in your eDiscovery strategy, is going to ensure that at the end of the day, you have the most valuable documentary evidence you need, uncovered in the most efficient way, and in the quickest turn around possible.