E Discovery

 

Try, for a moment, to imagine litigating or negotiating a dispute without discovery. Instead of facts or evidence, you'd just have an argument. And while that might make for better theater and be more fun for litigators, it wouldn't be much of a way to obtain justice.

Discovery—which, today, means e-discovery—is the way we marshal the facts of a dispute so we can reach a resolution. E-discovery is how we learn what happened, who did what, and who's to blame for whatever mess we now find ourselves in. The key to successful e-discovery, then, is finding information that's relevant and dispositive, wherever it may be.

Increasingly, we're finding that the discoverable data you need is online.

Think about it: The average American spends almost 24 hours a week online. In that time, we may be viewing a lot of preexisting content—reading the news, shopping, watching YouTube videos—but we're not entirely silent or passive consumers. We're also participating in social media, writing product reviews, commenting on news stories, chatting on discussion boards, and more.

The end result of all that time is that we're creating a massive store of potentially discoverable data online. And that latent data source isn't going to fade away or become less important. It's only going to get bigger, louder, and more pressing.

But there's a trick to using online data effectively in e-discovery: It's dynamic, and it has to stay that way.

What Do We Mean by Dynamic?

The internet is an entirely new communication method: constantly changing, interactive, and complexly intertwined, with links connecting different ideas. In addition to links, online information includes video, animations, GIFs, interactive elements like calculators, quizzes, and drop-down menus, and personalized content that detects and responds to the specific viewer. Whereas static data, like an email or a Word document, can be reduced to paper without losing any fidelity, online information loses most of its functionality the moment it's printed or saved as a flat TIFF image or PDF.

Remember the early days of e-discovery, when people would print Excel spreadsheets to TIFF? No one knew how to do discovery with spreadsheets, so they'd turn a modest-sized spreadsheet into a 64,000-page image or PDF that was impossible to view or, obviously, to use in any meaningful way. Recipients couldn't see formulas in cells or determine how those values were calculated or related to one another. It was, in short, a terrible idea.

Eventually, everyone figured out that they should just produce native-format Excel files. That was, no surprise, a much better way to represent spreadsheet data as it was actually created and used in the ordinary course of business.

We bring you this e-discovery history lesson to point out that dynamic online data loses even more fidelity when reduced to a screenshot, an image file, or a PDF. The solution is the same: we should collect, review, and present discoverable online data in its native format.

Benefits of Native-Format Online Data

Keeping online data dynamic by maintaining its native format produces at least three major benefits.

First, it maintains the full content and context of the original site, from videos and interactive elements to hidden content and linked pages. It's possible to capture not just the existence of a link but also the actual content on the linked page—because what's the point of capturing a link if you don't know what it links to?

Second, it makes it much easier to establish the provenance and authenticity of the information. When you receive a printed page or an image file that purports to represent the way a website looked at a certain point in time, you essentially have to take the provider's word for it that it is an accurate image. The more you transform any content, the harder it is to prove that it's authentic. By keeping a webpage in its native format, you maintain its fidelity.

Third, it's amenable to natural review. When a website is printed out or reduced to images, it's laborious and clunky to review. Reviewers can't, of course, click a link on an image, so they're forced to shuffle through piles of PDF or image files to find specific content. By contrast, native-format preservation retains the website as it appeared online, in an entirely searchable and navigable form. The site's data is kept “in order,” enabling the reviewer to click links, read associated pages, and interact with any moving parts, while freely navigating and exploring the content and its context in whatever order makes sense.

Chances are you've been ignoring the internet during discovery. If so, it's time you learned how to collect—and maintain—dynamic internet data for use in litigation.

 

James Murphy is the VP of Product at Hanzo. As VP of Product, Murphy is responsible for defining the product vision, strategy, planning, and execution working closely with development, sales, marketing, and operations to ensure revenue and customer satisfaction. During the last five years, Jim has served as the Director of Service Delivery for Hanzo and has more than 19 years of experience working within litigation support, information technology, e-discovery and web archiving.