The New York Law Journal and law.com published an article by Douglas J. Good titled, “A Modest Proposal to Resolve the E-Discovery Crisis”. The article’s central thesis is that the courts should “treat electronic communications like conversation and eliminate production of electronic communications in either electronic or hard copy format.”
Unless Mr. Good’s intention is satirical, as is the case with the original Swift essay which proposes the Irish eat their own children – his proposal is both an untenable and unachievable idea — and with a similar outcome to Swift’s essay.
It is impossible to define a “communication”. Would that mean the email doesn’t count but the attachment does? This idea is essentially a request for there to be no actual evidence in litigation, leaving it to ultimately to a contest between the recollections of relevant individuals. Maybe a contract — if it wasn’t sent as an email.
Mr. Good’s intentions of course are entirely correct – electronic discovery is too complicated, too expensive, choking the civil justice system. It is clearly an area in need substantial improvement in all facets – technology, expertise, rule-making and practice.
However, the problem with this proposal is the precise reason why the legal industry continues to struggle with electronic data – and will continue to unless a simple premise is understood.
The Internet Exists.
I borrowed the phrase from Prof. Lawrence Lessig of Harvard Law School. The legal industry deploys technology (and laws in Prof. Lessig’s opinion) in a completely outdated matter – a sort of 1970s Cold War style attempt to regulate, spend, or bomb (which is what ignoring evidence amounts to) as a way out of the problem.
This approach fails for the same reason we don’t have a Cold War style military in 2011. Too big, too expensive, too slow, too cumbersome, too reliant on big programs, not agile and not precise.
The fundamental approach for handling electronic discovery has been the same for more than a decade. Buy servers, buy software, install, train, staff, spend, spend, spend. Repeat. And if you can’t afford it, you can’t do it.
The exact problem is seen in the article by talking about Watson — a standalone computer! A computer? Are we taking about a computer? A computer? C’mon man.
Talk about Google. Or Facebook. Or Twitter, or Flickr which deploy “clouds” of computing power and storage as a utility – not “a” computer.
Which means these services do the opposite of what the article proposes will help us. These services save EVERYTHING. And search everything. And make the data available all the time across a variety of devices.
And at small costs. Watson can’t run Facebook. The solution to the e-discovery crisis already exists. It’s the Internet.