Leonard Deutchman

Introduction

I must begin this month's article with an apology, specifically for this article's confusing title. I have to believe that virtually every reader of this article must be confused and wonder why I am writing as if e-discovery has disappeared. I well understand the confusion. The thesis of the article is not that e-discovery has somehow evaporated, but rather that the thinking in the legal world regarding e-discovery has so changed that, as with many other ideas (and the tools that helped those ideas to flourish) that were once novel—that communications could travel thousands of miles over telephone lines, for example—those ideas and tools lost their novelty as those in the legal community became comfortable with them and thought of them as simply different ways of articulating ideas and tools long used in the legal world.     

Over Time, the New and Unusual Becomes the Quotidian

The legal world is still populated mostly by baby boomers (born 1946-1964) and Generation Xers (born 1965-1980). Given that the oldest boomer would be 75 today, it is easy to see that the boomers and Gen Xers are shrinking over time, that the youngest within the groups and those in other groups make up those in the legal world who actually run things, and that in not that many years boomers and Gen Xers will have all but disappeared from the legal world. 

It is also easy to see that computers joined the legal world with boomers and Gen Xers. Computers had been invented before 1970 (the first year a boomer law student could move through grade school, high school, college and law school without starting early or skipping anything and become a lawyer), but those computers were too expensive, they lacked storage space and didn't have applications and model documents lawyers would need to do business. As well, all of the issues just listed held true for all but a handful of very large companies, meaning that businesses were not generating the digital documents collected in e-discovery. For these reasons, computers may have existed but were nowhere close to common and certainly were not part of everyday discussions, e.g., "I'll send you an email," "I looked that up online yesterday," etc. By 1990, computers and their operating systems and applications were standardized enough for lawyers to imagine copying data in digital form, as opposed to printing data to paper, and by the end of the 1990s, when boomers were 26 to 54 years old, digital forensics and e-discovery were standard in the legal workplace, as well as in workplaces and homes everywhere.