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August 03, 2009

Is It Time to Lose the e- ?

Noway Today at lunch with Nixon Peabody's IT guru John Roman Jr. (of our LTN edit board) and associate Andrew Cosgrove, we got to talking about whether or not the time has come to drop the "e" in front of e-discovery.

After all, it's discovery -- and 99% of it involves electronic files.

Yes

I'm tempted to deploy  initiate adopt that policy with our next EDD Showcase in October.

Si or no?  And why? 

8/12 Update: After a long and healthy debate, and with thanks to all who commented, I'm ready to issue my ruling: The e- stays. For now......


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Monica: I think that e-discovery is still a useful distinction. Back in March Judge Scheindlin made much the same comment in her interview with Ralph Losey and I think my repsonse to that comment is equally relevant to yours:

"Second is a quote from Judge Scheindlin I found of interest: “We used to say there’s e-discovery as if it was a subset of all discovery. But now there’s no other discovery”

Now with all due respect to the Judge, I have to disagree. First, of course, we still have Depositions and Request for Admissions and Subpeona Dices Tecum and …well, you get the point. But also, down here in the the streets and out here in the fields, if I may mix a musical metaphor, where the people who don’t make it into Federal court with mega-milion dollar cases are, to paraphrase Chris Berman , rumblin and stumblin through plentiful paper productions, it’s not all about e-discovery at all.

All those general practitioners Ralph mentions on his bog are working with general counsel and city attorneys who still haven’t entered the digital era and routinely practice with bankers boxes of paper and not jewel cases of CD’s. I live in New Orleans … believe me, it’s true."

And in fact I'm told by numerous vendors that their requests for paper productions and blow backs are actually UP as their ED business has declined (I think the S-G Survey reprot of a 9% decline in ED revenue is grossly underreported but that's a comment for another post): the response to the economic decline by many firms has been to resort to what they know best: plain old paper discovery.

So don't drop that "e" quite yet ...there's still plenty of other discovery around to make the distinction useful.

http://www.slate.com/id/2223844/
How to reassemble a shredded document.

How long must I preserve the shreds for a legal hold? Is this different from deleted files in ESI? The rules for discovery are the rules for discovery. The tools will change to suit the sources and fit the production needs (since "review" is presumed, but not really required by the Rules). Drop the "e-", even if it's for a distinction. Or soon we'll have "v-" to deal with SaaS and Cloud Computing.

I vote yes to drop it. Even if paper is still around (and it will be for a while), it's all still just discovery. We have new rules and methods for handling electronic data, but discovery is discovery.

I agree with Chris, it's just discovery, but the hyphenated "e-discovery" is so much less interesting than the nonHyphenated "eDiscovery". Think i-phone vs iPhone. It's kind of like mac vs pc, in that mac = eDiscovery and pc = e-discovery. Maybe we should make an ad for it?

I don't think it's time to drop it. There are a whole set of eDiscovery rules and a whole related set of problems and issues that apply, as well as evolving case law, and believe it or not, a lot of attorneys have not yet dealt with them. I think it's still important to make the distinction.

I was thinking about this on a coast-to-coast flight last week. My conclusion, it's too early and it may always be too early.

I am involved with productions that are primarily paper, but we "process" the documents as best we can (scan/OCR) and produce them on a disk. I am also involved in productions where we take electronic documents and print them to paper (hold your snickers). Both just discovery right? Not really. In the first scenario, documents are initially culled by looking through the paper (the old fashioned way). In the second scenario we are using technology to find the documents. So, to me using software or a vendor to conduct discovery of ESI requires an extra "e" to get the point across.

I'd like to hear from others in the trenches, but many many clients (and still more lawyers) are not on board with the basic steps to even facilitate e-discovery. I spend a lot of time translating "discovery" duty (what many understand) into "e-discovery" duty (what many seem to misunderstand). For the most part, they are the same duty to identify and produce material that is in your possession, custody or control (subject to the two-tier not reasonably accessible designation.) When fear of the unknown is explained away, invariably fear of time, effort and expense creep in. I think a lot of folks are ignoring some of their responsibilities to avoid expanding the scope of discovery because it's a lot of work and it costs too much. This is a dangerous game that is reinforced with much bullet dodging when cases are resolved. "See mom, no sanctions!"

In sum, the "e" helps me talk to clients about the special requirements of ESI discovery, even though it is really just discovery. I vote to keep the "e" for now.

Here's my view, from a blog post at Strategic Legal Technology, dated 18 April 2007

How’s Your Horseless Carriage Handling?

If I ask the titular question, you’d rightly think me odd. But if I ask “how’s e-discovery going?", what’s the problem. Do names mean anything?

For centuries, the horse and carriage was a key way to get around. It took years before the horseless carriage moniker faded in favor of cars (or autos, SUVs, etc.).

The name “e-discovery” suggests something special, that there is some other kind of discovery. Sure, paper may still play a supporting role, but with the newly amended FRCP, E has the lead role.

At some point - maybe now - we need to lose the E. Dropping E might help de-mystify the new electronic world and signal that the fantasy of non-digital discovery must die. (Even if not all discovery is quite yet E, lawyers better know about it. See Conrad Jacoby’s Separating E-Discovery Myths from Realities at LLRX.com for more on this point.)
--end original blog post--

Though I agree that e-discovery has eclipsed paper discovery forever, it wouldn't be green to drop the distinction anymore than it would be sensible to demand people refer to depositions, interrogatories, requests for production or subpoenae as "discovery." If we can't say "e-discovery" when we expressly mean efforts to discover electronic evidence, then we have to say "efforts to discover electronic evidence." I don't want to kill that many trees or waste that many pixels.

When the "e" fits, use it!

First, let me compliment you and your commentators for some vibrant considerations over the e-discovery/eDiscovery reference.

Of all the posted comments I've seen so far, I strongly agree with John Jablonski's opinion. Here in the trenches, we encounter far too many attorneys and litigants who have not adopted the full spectrum of policies and procedures to conduct adequate discovery that includes ESI. I'm not certain as to when or what event might trigger the elimination of the "e" preceeding discovery but I believe it would premature to do so now.

My opinion...

Discovery is Discovery. It has been for a long time. Yes, before there was 'E', there was discovery.

Tell me, when the lawyers on this list go into court, does the judge ask if you've completed discovery or does he ask "have you completed e-discovery"?

Drop the 'E'.

E-Tom

I agree with Craig, except, if you are concerned about pixel space and saving the planet one less word at a time, why not drop the hyphen too? You write a lot of eDiscovery articles and I'm sure you use the more managable eDiscovery instead of "efforts to discover electronic evidence." Assuming you write 5 articles a month and use the hyphenated e-discovery 20 times per article, that's 100 hyphens per month or 1,200 hyphens per year, easily one or two full pages of hyphens. So much waste with these hyphens. You could be saving 2 pages a year Craig, 2 pages!! I smell a Nobel prize in conservation.

Seriously though folks, drop the dash in a flash and we can all celebrate at the next eDiscovery bash.

Count me firmly in Craig Ball’s camp. The inherent and meaningful distinctions signified by the “e” component of “eDiscovery” remain important to maintain, even in an era in which “eDiscovery” has eclipsed paper discovery forever. After all, these distinctions are what culminated in a six year debate/dialogue leading up to the “eDiscovery” Federal Rule Amendments. Amendments which were delivered in a package larger than a footnote, just to make sure we remember that the distinctions between discovery of paper and discovery of electronically stored information ARE different… VERY different. As long a paper remains part of the equation (however slight), then the “e” should remain in place unless you resort to some “long-hand version” of language that specifies discovery of Electronically Stored Information.

While I have a “preference” for dropping the hyphen in “e-discovery”, I won’t be missing any sleep over a debate about that pesky little character (and you can probably guess my position in a vote on “mail vs. email” as one indicates a traditional “Mailbox” for paper mail rather than an “Inbox” for digital mail - back, again, to meaningful distinctions and the hyphen issue).

Keep the “e”!!!

There is no question the "E" in e-Discovery now dominates all "discovery" matters and discussions. However, I would not drop it unless and until there are no longer any legal practitioners out there who believe that producing a printout of an email is the same as giving access via a pst file or some other electronic format. Better to keep mentioning that "E" thingy and make it clear.

LTN tends to deal with major law firms where e-discovery is top of mind, and the thinking and practice of law is somewhat different there than the rest of the legal world. In major firms, positions have been created to manage it, in-house seminars and training is automatic and the firm's clients receive training to avoid risks involving it.

That being said, just yesterday LTN wrote about the lack of training and woefully low number of attorneys, technicians and paralegals who are experts in this arena. To drop the "e" at this point is to quit educating the majority of the legal profession involving small firms or solos, practice specialties that are not litigation (remember: all specialties involve some kind of e-discovery practice), and lack of continuous education to clients.

You can pretend to save a lot of trees by dropping the "e" or pretend that every attorney and client is familiar with the sub-practice but as publishers, we have a duty to continue to educate the field until we are thoroughly convinced that the horseless carriage is indeed a car.

Craig, instead of "efforts to discover electronic evidence" how about "ESI Collection"?

There are certainly some good points here for keeping the "e" for now, but I still think it's an unnecessary distinction. The discovery process has changed, and is changing still, to meet the new realities of ESI. But it's still discovery.

However, I do think that little "e" has developed a lot of power to promote change and education. The "eDiscovery" bogeyman makes lawyers young and old snap to attention with fear. On second thought, it might not be wise to voluntarily lose that power to command attention, at least not until there's broader understanding of ESI issues. Would that be like unbaiting a hook but continuing to fish?

Almost forgot: My previous waffling aside, I am firmly in favor of dropping the hyphen. The battle between email and e-mail raged for a long time, but it seems email has won. Let's save ourselves a lot of confusion, uncertainty, second-guessing, hand-wringing, furrowed brows, indigestion, and (frankly) poor aesthetics and drop the hyphen. eDiscovery for all!

In my opinion, the arguments in favor of keeping the "e" are stronger. However, is it possible that dropping the "e" will make practitioners in Louisiana, for example, come to the realization that this is something that they're going to have to learn sooner rather than later?

I think it's way too premature to consider dropping the "e". Why? Because when I use the term "e-discovery", virtually nobody outside my immediate sphere has any idea what that means!

For me, the decision shouldn't revolve around what the "insiders" know. When the general public understands what it means and it becomes part of the vernacular, maybe THEN it's time to think about losing the "e".

Just my 2 cents...

"eDiscovery for all!" - Chris is with me, come on people, get on the eBandwagon, drop the hyphen, but definitely keep the "e". Because of SMS and Twitter, soon we will all use abbreviated words anyways. So, maybe we should fall back on the oldskool "edd" instead of eDiscovery.

When I first started concentrating on this field, I thought the niche would last 5 years. That was 10 years ago.
I think the eDiscovery moniker is handy to alert those who have yet to deal with it that ESI is something different, needs special handling to avoid spoliation, and has special considerations. Keeping up with the technology where information is stored, technology to apply in a "discovery" situation, the process, the decisions, the state and local rules on the subject...
For those of us in full immersion, discovery without the "e" is a good reminder that there is a full set of Federal Rules of Civil Procedure, not just a bunch of recent amendments. Using the word "evidence" rather than ESI trains us that we are handling evidence that has a rule set (FRE) all its own.
So, Monica, for the LTN audience, I agree with dropping the "e" in eDiscovery.

I received this comment on my blog from "Subpeona Dices Tecum" this morning when I mentioned this conversation on EDD Update:

"Listen, you ED/doc review centered folks. Some of us actually LITIGATE. We still have Depositions and Request for Admissions and Subpeona Dices Tecum and … well, you get the point. But also, down here in the the streets and out here in the fields (the people who don’t make it into Federal court with mega-milion dollar cases) are rumblin and stumblin through plentiful paper productions, it’s not all about e-discovery at all. All those general practitioners Ralph L. mentions on his bog who are working with general counsel and city attorneys still haven’t entered the digital era and routinely practice with bankers boxes of paper and not jewel cases of CD’s."

I don't have the heart to tell this person that the Latin Phrase is actually "Subpeona Duces Tecum, but I think it is clear "SDT" wants to keep the "e" in place.

thanks for the catch on the typo Gabe. Just had a business trip to Las Vegas that obviously made a bigger impresssion than I realized!!
And BTW the acronym SDT is a huge honor for any resident of NOLA ... shout out to Sidney Torres and all his crew. We may have put the fun in funeral down here in the Crescent City but Sidney put the sweeps back on the street!!
http://www.sdtwds.com/

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