Discovering Digital Truth

Discovering Digital Truth is the Purpose of eDiscovery: eDiscovery Best Practices

What is the purpose of eDiscovery? You might think that it’s about discovering documents or data, or about leveraging technology and/or workflows. But, as Derek Duarte of UnitedLex tells us, it’s about discovering digital truth.

Their article (Discovering Digital Truth: A Different Approach to eDiscovery, available here) reminds us that before there was electronic data, paper was the primary storage media and most business processes – not just discovery – revolved around paper. Paper documents were produced in discovery and productions in large cases could literally involve boxes upon boxes of paper documents that had been photocopied.

When work product began to be created on computers and we began to communicate electronically through email, responsive documents were initially printed out to be produced before we adjusted eDiscovery workflows to produce those documents electronically, in image form. Emails and office files carried forth the “document paradigm” to which legal professionals had long become accustomed.

Today, the document paradigm is alive and well. eDiscovery platforms are document-centric, and review of evidence is called “document review”. As we have evolved into newer forms of electronic evidence, such as texts, collaboration app data, location data, and audio/video files, we have forced the “square pegs” of those newer forms of data into the “round hole” of the document paradigm.

While you wouldn’t know it from looking at eDiscovery platforms today, eDiscovery is not about discovering documents. Nor is it about discovering data. Nor leveraging workflows or technology. According to Derek, it’s about discovering digital truth. Find out why (there’s a hint!) in their article here and how they demonstrated it in a recent case here!

So, what do you think? Do you agree that eDiscovery is about discovering digital truth? Or is it about something else? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclosure: UnitedLex is an Educational Partner and sponsor of eDiscovery Today

eDiscovery Assistant

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

One comment

  1. “Digital truth”? No such thing. What eDiscovery calls “finding facts” are not truth, just a small part of it. Merely a record of what somebody decided to leave on the record.

    Just one example. Read “Empire of Pain” or any of the other history and analysis of the opoid addiction cases – the 1,000s of documents, text messages, hidden/not discovered. The Posse List received 100s from document reviewers who were disgusted by what was deleted or hidden under privilege logs – as they were directed by the law firms. Attorney “ethics”? Not when serious money is at stake and you are paid to protect your client. Don’t make me laugh. The Sackler family got away with murder.

    Everything my team received were provided to the media. Which we have also done in many other cases. That’s pur obligation as journalists. Not “ethics”. Morality. As one eDiscovery attorney told me years ago “We never break the letter of the law. We can get in trouble for that. But the spirit of the law? Oh, yeah. A lot. But that’s not an ethical violation”.

    In answer to your question in your last paragraph, eDiscovery serves the corporate legal industrial complex. 99% of eDiscovery is about money and corporate power and corporate shenanigans. Nobody is going to jail. Violate an eDiscovery rule? Maybe a money sanction. Wow.

    But discovering “digital truth”? No. Only discovering the controlled narrative.

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