Does the challenge of e-discovery arise from a case of technology practices going past the old boundaries of the legal system? It is a fast-moving field. The so-called problem of discovery of electronic data in litigation is really a problem of perceptions. Yes, there is much more volume now because it’s easy to create mountains of data electronically. But added to that is the problem of lawyers not learning how the technology works and defaulting to old-fashioned discovery strategies that aggravate rather than resolve the problem.

How so? In the old days, we had to take all the boxes of paper in the warehouse because we didn’t have any way to find out what might be relevant without going through every file in every box. Unless there was a person there to tell you, “Oh, here’s my file about the Widget case,” the lawyers would read everything and try to discern what was relevant, what was privileged and what was confidential. Now that most information is digital, we have the technical tools and skills to find what we need electronically. It’s still better when there are people available to tell us where the relevant information is, but if we don’t, we can use technology to search, filter and sort the documents in our electronic boxes, if you will.

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