You say Data, I say Evidence. It’s not (to-máto) or (tomā-tō)

Ryan Murphy,
Managing Director of Consulting Services

Nothing has done more to slow the evolution of Legal Discovery in the last decade than the four letter word “data”. A quick review of the two definitions that are used to define “data” provides some valuable insight into this paradigm. In the fist reference [1], data is defined as, “Factual information, especially information organized for analysis or used to reason or make decisions.” The second reference [2], the computer science derivative, is – “Numerical or other information represented in a form suitable for processing by computer.” The problem is that when most people think of computer files, they use “data” to describe those files which connote the computer science numeric processing root and instantly tune out any factually or decision making properties. This has huge liability implications when you consider the fact that “files” are created by people and that possession, alteration or knowledge of the existence of those files (when related to a law suit) exposes those people to the scrutiny of responsiveness.

The reality is that every “file” is a recorded thought. I am going to let you think about that for a second… Skeptical, ok – fair enough, lets look at that further. A contract (word processor file) outlines the terms and conditions one party would like to exchange (value) for goods and services from another party. Any communication or suggested alteration relating to the terms, conditions, transfer, cost or material understandings of the agreement concerning the goods or services are the thoughts of a party as to their interpretation of what the other party’s intentions are. Now consider the types of recorded thoughts that are in your client’s possession and in the possession of opposing counsel’s clients’ – email, voice mail, spreadsheets, drawings, schematics, calculations, pictures, contacts, calendar appointments, journals, reminders, meeting notes, personal notes, password protected files… Still think its data? Alright, what if I told you that by using the metadata that is present in every file you could not only recreate the genealogy (who and where did it come from) of that file but the evolution (who changed it, why and what were the intended changes expected to result in) of it as well. Oh, I almost forgot, and one last thing – all of the items above, who, where, when, what, where is it now, where has it been and what did we do with it, etc – all prima facie. Want to use this to your advantage? Contact us to see how our NeedleFinder® Evidence Assessment tool can weaponize your client’s electronic evidence and expose what opposing counsel MUST produce as responsive.

Bad Words, there are more than 7 of them.

Ryan Murphy,
Managing Director of Consulting Services

The Supreme Court landmark ruling in Federal Communications Commission v. Pacifica Foundation, 438 U.S. (1978) decided that there are at least seven “indecent” and patently offensive words. Those of us that are tasked with producing responsive, non-responsive or privileged discovery based on “key words” have used all 7 of those words (and many more) to describe our frustration in failing to produce expected results. There is very little (or should be very little) “mystery” as to why the margin of error is so vast. Using intuition and deductive reasoning based on a review of the body of evidence to come up with a series of words that represents the responsive, privileged and non-responsive evidence contained in the electronically stored information is like trying to decipher the 23 flavors and other ingredients of Dr. Pepper through sips; only with less potential for tooth loss.

The evolutionary path of Electronic Discovery is becoming clearer every day. What is almost certain however is that the 2007 changes to the Federal Rules of Civil Procedure did not set out to create 2 separate types of evidence – 1) that which is determined to be responsive based on the content (traditional legal discovery) and 2) that which is determined to be responsive based on the amount of time remaining in the production deadline and counsel’s ability to come up with a magic formula of words to produce evidence.

Over the past few months, there has been a HUGE discussion brewing on how to bridge Boolean key word searches and the gaps they leave in the failure to produce discovery. Clustering, Social Networking and Artificial Intelligence attempt to describe methodologies and processes by which evidence can be organized but nonetheless require manipulation through generic grouping or key words to cull. The most effective, efficient and more importantly defensible position is a process by which evidence is culled based on the core facts, those being; A) Who and B) When. Then categorizing the evidence using the metadata to provide responsive, non-responsive or privileged discovery without any human manipulation. At Equivalent DATA, we call this Evidence Assessment and this process is readily available.