Disparate Data and Its Evolving Impact On eDiscovery and Managed Review

Litigation

By Katie Harvalis and Seth Hughes  

It should come as no surprise that as the world continues to progress digitally and even more technologies emerge, data volumes and types continue to grow exponentially. From a litigation standpoint, this means we continue to be faced with an ever-evolving set of sources for discoverable information. Emails, office documents, instant messages, SMS, and WhatsApp are all fair game yet only scratch the surface of the data types crossing the desks of eDiscovery professionals today - and tomorrow only promises more data and more challenging formats.

So what are some of these new data types that affect eDiscovery?

Keeping up with-let alone understanding the relevance and significance of- these new data types to the idiosyncrasies of each matter is no mean feat. Beyond those common sources that inherently gain the legal teams' considerations today, we are increasingly experiencing not only the demand but also the need and value of these "sources of tomorrow."

Not that many years ago, mobile phone data was the new source on the block alongside instant messaging apps- both personal (WhatsApp, Facebook Messenger, WeChat, Telegram) and enterprise (Lync, Skype, Google Messenger, Bloomberg, Reuters). We also began considering call recordings and structured data sources such as FX transactions, buy/sell orders, and we are seeing even more joining this growing list. To put some numbers around this, in 2020, 2.5 quintillion bytes of data are produced by humans daily.* And an estimated 463 exabytes of data will be generated each day by humans as of 2025.*

This burgeoning list of data types comes with its own set of issues that can make things even more complicated and, as a result, can become a roadblock to an efficient review without a reliable eDiscovery solution.

How does this emerging, disparate data impact eDiscovery and Managed Review?

In terms of discovery and litigation, all of this broadening new data that is and will continue to be produced by an expanding technology landscape will present a variety of new obstacles.

Staying on top of new data types is like playing a constant game of catch up. And even once you do, data types have advanced again. With trends leaning towards a rise in businesses moving to a remote working model in the long term, data types will likely grow even more as additional communication and collaboration tools are brought to the forefront.

In other words, consolidating, understanding, and reviewing modern data types is an entirely different beast than it once was. Back when all discovery was conducted on hard copy documents, there was only one way for an attorney to read the documents, however, with the amount and variance in the data present in litigation today, there are an infinite number of solutions in play. This new age of data promises more complex and unfamiliar data types that will prove to be a formidable undertaking for legal teams to analyze in any volume and will require strategic managed review workflow plans that properly account for the challenges based on variances in data types.

To thicken the plot even further, the technology landscape for eDiscovery tools to process and review these growing data types is just as challenging if not even more complex to navigate. The list of these tools is growing daily, some represent entire eDiscovery solution ecosystems and plugins whilst others are independently run analysis tools. Determining which tool(s) to invest in to combat your eDiscovery challenges of today and for tomorrow costs an organization time and money while also running the risk of making a potentially bad investment. Even beyond selecting the tools, there is the additional complex investment of developing a resilient, quality assured, and experience backed process alongside the on-boarding of resources that can effectively deploy, manage, and support those tools.

So with this exponential growth of data showing no signs of slowing down and an over-saturated litigation technology marketplace, the key is knowing how to evaluate which tools will solve your unique eDiscovery challenges while at the same time allowing the organization the room to offer dynamic eDiscovery and managed review solutions because the technology landscape and data types are constantly evolving. For organizations that solve this technology, people, and process puzzle, there is the potential for significant cost savings through efficiencies.

In short, as the scope and types of data continues a seemingly boundless upswing in the future, legal teams will need to meet these associated challenges with an equally dynamic and tech-enabled solution.

*Bulao, Jacquelyn. “How Much Data Is Created Every Day in 2020? [You'll Be Shocked!].” TechJury, 10 Sept. 2020, techjury.net/blog/how-much-data-is-created-every-day/.

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