The Curious Case of the Hyphen in E-Discovery/eDiscovery

Winston & Strawn's Washington, D.C., office? Clearly not on my side. Photo by Diego M. Radzinschi/The National Law Journal

I have something perhaps shameful to admit. I'm a hyphen truther. For years, I've planted my flag staunchly in that side of an important debate that has ripped through legal technology for years: Do you spell e-discovery/eDiscovery with or without a hyphen? I've corrected articles to read "e-discovery," have debated about how to capitalize it in headlines, and listened as my peers staunchly rebuked my hyphenated ways.

As it turns out, my preferred method may not be the industry's at large. In an informal poll I conducted via email and Twitter in April, more than half (54%) of 53 respondents said that "eDiscovery" was their preferred way to spell the term, compared with just 19% for the hyphenated version. An additional 27% said that it doesn't matter, because it's all "discovery" anyway!

This finding brought me great trauma; it was part of a public Relativity Fest panel last year where I planted my flag in the hyphen camp. Now though, I'm having second thoughts. Sitting next to me at that event was Kelly Twigger, principal at ESI Attorneys and a prominent writer on e-discovery, and she's declaring victory.

"I have used 'ediscovery' since I started doing this in 2004 and have held fast that it is the correct way. I am glad the industry has come around," she told me via email. "I write a lot and some editors change it (in my book the editor changes it to e-discovery despite my protests). I use eDiscovery when the word should be capitalized. I'm not sure I have a good reason as to why, it just makes sense to me that way. I go by gut."

But maybe it's time to get rid of the "e" altogether? David Horrigan, discovery counsel and legal education director at Relativity, told me that the discovery giant has the hyphen in its style guide. But that's not what has his attention.

"However, we should all avoid redundancy in our writing," Horrigan argues. "Because almost all data are now electronic, can we finally just drop the 'e' altogether and go back to those glorious, bygone days of yesteryear when it was just 'discovery'?"

Not so fast, Twigger said. "We are not quite there yet, so I don't agree that all discovery is electronic. Yet. We still do have paper, and lots of folks are still converting paper to electronic to deal with in discovery, particularly on the plaintiffs' side. That came up recently on one of Ari [Kaplan]'s virtual lunches, and there are many corporations with mounds of paper sitting at Iron Mountain and the like that has to be dealt with on some matters. I do agree that every case has ESI and therefore ediscovery, but we have to be careful to avoid just the defense perspective when looking at these issues industry-wide."

And still others took an alternative view. Befitting a retired federal judge, Andrew Peck, now a partner at DLA Piper, took a wider look at the problem—maybe the hyphen isn't the only issue? "Then there is the question of which letter is capitalized. Is it eDiscovery or Ediscovery? Or for that matter EDiscovery?" he asked.

Then, in a scary development, he put the onus on a certain editor: "Maybe it's time for some publication to have a style guide that answers this question. Not likely for The New York Times to step in, so I think you and LTN get to make the call."

So if I'm going to make a call, I need hard data. Legal technology researcher and consultant Ari Kaplan is the man with the numbers: Kaplan has spent hundreds of hours over the past six years interviewing a range of leaders for research. His sixth annual E-Discovery Unfiltered report is due to be released shortly, and he is immersed in data about the sector.

And what deep insights did he find? "One of the key conclusions has been, among others, that well-intentioned, high-level, in-house professionals and their well-informed law firm-counterparts agree to disagree on hyphenation," Kaplan said.

Is that right? Well, then in my official determination … I'll punt. I think that everyone should use what they're comfortable with, even if it means I'm increasingly left alone on my hyphenated island.