The ghost of Discovery past.

I’m going to start out today’s post with an exercise in stating the obvious: Technology is a central part of Discovery in the legal profession. Indisputably so. Take away computers and hardware and software and automated processes and all the rest of it, and you’re left with banker boxes full of physical documents, a highlighter, hundreds of hours of reading, and a whole lot of paper cuts on your fingers.

Computers and automation literally transformed the discovery process in the legal profession (it gave it a prefix!), and it seems like it happened in the blink of an eye, which is not a temporal pace one usually associates with legal. And it’s not just that the legal profession had to adjust to the fact that computers and automation and advances in tech permeated every facet of every industry. That’s a speeding train that everybody has had to board. It’s that computers and automation and tech advances profoundly changed the quality and quantity of the artifacts of every industry, as well as the artifacts of personal documentation and communication. And these artifacts are the very center pieces of discovery processes. A discernible pile of physical documents became a limitless and ever-expanding universe of electronically stored information. Banker boxes were traded for hosting platforms, highlighters for radio buttons, and paper cuts for carpal tunnel. Discovery became eDiscovery.

Interesting aside: Here you have a profession that operates on the very notion of precedence, historical relevance and traditional methods, having to quickly adjust and evolve due to broad external technological forces, and doing so at a speed that could be construed at “uncomfortably terse” and at a pace that shows little or no pause for precedence and history.

Regardless of the legal profession being traditional by nature, eDiscovery has had to operate in a cutting-edge manner as it is a driver of technology in the field, as much as it is also the result of technology in the field.

And if technology is a foundation of eDiscovery, then data is the massive metropolis erected on top of this foundation.

The legal profession has been dealing with, and reacting to, “Big Data” (or Big ESI, as it were) long before it was a regular part of the tech lexicon. It could be argued that the legal profession in general, and eDiscovery in particular, has been at the fore in adopting practical tech solutions to deal with large quantities of computer-generated data, or what I referred to upstream as the artifacts of doing business in our computer-mediated world.

Now, I am getting to the point (finally!) that I want to frame a larger discussion of technology, technical expertise and eDiscovery: I believe technology and technical expertise in eDiscovery proper has been driven almost solely by the fact that our computer-mediated world produces a lot of data. I want to reiterate this point because it’s an important one: In eDiscovery, the drivers of incorporating technology, and adopting tech solutions, have been primarily a reaction to the quantity of ESI, as much as to the digital environment in which it is produced. And even if you don’t completely agree with this assessment, it’s an interesting idea to ponder, nonetheless.

And with that, I’ll conclude this historical look at technology and eDiscovery. I’ll end this last post of 2014 by looking ahead to next week’s first post of 2015, which will be a present-day technology/eDiscovery state of the union, segueing into a look to the future. Until then, I hope your holidays have been uncommonly merry and undeniably bright.

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