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Dealing with the Data that Doesn’t Fit the Electronic Discovery Mold

Why Do We Keep Trying to Fit a Square Peg Into a Round Hole?

For as long as we can recall the world of legal discovery has always referred to things as “documents”. Even Nolo suggests that it is about “facts and documents”. Absent is the word “data”. Turn the clock to today and all you hear about is “Big Data” and the expansive growth of computing. We are creating data at an alarming rate, and this data is expected to grow to 175 Zettabytes by 2024. However, most review products are still trying to fit that Big Data into the “document” mold. 

The purpose of electronic discovery is to gather what is widely referred to as “Electronically Stored Information” or “ESI”, not “Electronically Stored Documents”. The Federal Rules of Civil Procedure, specifically Rule 34(a)(1)(A), details this as “any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.”

First, let’s point out that Rule 34 actually separates the word “document” and “electronically stored information”. That last phrase of “reasonably usable form” is the catch. When we think of a reasonably usable form, we think “document”. After all, the legal world of discovery was built on documents: document scanning, document coding, document production. You can’t get through a conversation in the electronic discovery space without hearing the word “document”. 

But here we are in the world of Big Data still trying to force that Big Data into the document mold. It’s like trying to force a square peg into that damn round hole! You try and try, and it just does not fit!

But here we are in the world of Big Data still trying to force that Big Data into the document mold. It’s like trying to force a square peg into that damn round hole! You try and try, and it just does not fit!

Ever tried reviewing a spreadsheet full of text messages with emojis and “stickers”? Not so easy is it? Ever tried making sense of years and years of financial transactions one right after another in a spreadsheet? Without a chart or graph to show the totals by month, quarter or year, it becomes a fairly complex process. Ever tried looking at a series of longitudes and latitudes without a map to visualize them on? Seriously, without a map to show where those coordinates correlate to an actual address or location, we are literally lost! 

The point is, in this world of Big Data, why do we continually try to make things into “documents”? Today’s technology allows us to translate data into dynamically reviewable formats such as maps, charts, graphs and even “chat bubbles”. It is done by leveraging the data itself, in the form it originally existed (which was never a document by the way). This allows a legal or investigative team to understand the surrounding context of those rows and rows of data and turn it into usable information. 

So what is the problem? It is the order in which we do things. What is the key to deciphering this era of Big Data for legal discovery? Instead of immediately trying to make data into a document, flip the script. Use the data first, identify the key data points in context, and then create the document!

That is what ESI Analyst facilitates, today's modern data that others continually attempt to convert to a document first.

The legal world needs documents; we get it! However, before you turn that data into a document, review that data in its near-native format. Then once the context is derived, translate that data into a “reasonably usable form”. 

Quit trying to force that square peg into a round hole. Instead, start with a system that was designed for the square peg.

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