If there’s one thing I learned in many years of litigation, it is that on the whole, the lawyer with a better command of the facts wins.  I was recently reminded of this truism reading a post by Ralph Losey.  I’m a regular reader of Ralph Losey’s blog, although this doesn’t necessarily distinguish me from the masses of eDiscovery professionals.  Ralph’s genius is usually right out there on display; take, for one example, his Secrets of Search series (Part I, Part II, Part III).

I’ve just read a recent Losey post: Bottom Line Driven Proportional Review.  It’s not like Losey to bury the lede, but I think in this one, he does.  Deep into the article, when he talks about attorneys estimating legal costs, Losey makes the following observation: “[y]ou have to know your case, know your ESI, to make a proper estimate.”  In context, he’s talking about knowing whether your ESI comprises easy-to-read emails, or massively long documents that might take 5 minutes each.

Let’s expand on this a bit, because there’s more here to mine.

If we really wanted to say it true, knowing your ESI is everything.  People often get confused when you add the “e” to anything.  Once, when I was a fledgling prosecutor, I wrote and the NYPD executed the county’s first search warrant for computers and computer data.  We were all excited to do our first “high-tech” warrant.  When we executed the search warrant, a police officer searched the kitchen, including the refrigerator.  In the fridge were two kilogram-sized bags of what was later described to me as a “brown powdery substance” (heroin).  But because the officer’s head was saying, “high tech warrant,” and the bags were decidedly low tech, the officer left the bags in the fridge.  He forgot for a moment that a search is a search, and when you come across heroin, you seize it.  He got caught up in the “e”-ness of the day.

People today face the same challenge.  “e-Discovery” is discovery.  The same challenges apply, although sometimes in much greater scope.  Electronic data isn’t self-authenticating.  Electronic data might be hearsay.  You have to treat it the same as you would any other piece of evidence, or potential evidence.  Adding the “e” makes no difference.

And it is still true that the lawyer who knows the facts best will probably win.  An attorney who doesn’t understand the case’s “ESI” is just saying that he or she doesn’t understand the facts of the case.  The addition of the “e” might entail different terminology, but what your evidence is, where it is, and in what form it is, are crucial things for any attorney on any case to know.

This is why more and more focus will be paid in the coming weeks and months---both in my writings and in the industry in general---on the use of technology not just for review, but for search, governance, and  categorization.  In order to successfully corral your evidence---be it electronic or otherwise---you have to know where it is and what’s in it.  Your review then becomes less about “what is this” and more about “where does this fit in my theory of the case.”  We are then in the technology-promised land: preservation, collection, and review once again being an enabler of attorney work product, not a barrier to it.  At the same time, we turn discovery issues back into an adjunct to the case, a collateral issue.  Not a piece of leverage to force settlement in order to avoid costs (a deplorable state of affairs, by anyone’s standards).  The fact that Losey had to write an article about this at all, applying the Golden Mean to eDiscovery cost evaluation, eloquently shows how ludicrous this entire industry has become.

I’ve heard many times over the past year that “technology needs to solve a problem that technology created.”  Despite being a gross oversimplification, it’s not inaccurate.  Over the next weeks and months, I’ll be writing more about new products that Recommind has developed and is developing that will enable companies to better manage data, with downstream effect of reducing the cost of eDiscovery as a whole, letting law firms better advise clients on the merits of their issues, and allowing corporations to better identify and address compliance risk.  Stay tuned.