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Forms that Function
By Craig Ball
Over the course of the last decade, it’s been a Sisyphean task to get lawyers to lay aside rigid ideas about forms of production in e-discovery and focus on selecting forms that function.
“Forms that function.” Forms of production that work.
Ever since the demanding class, “Architecture for Non-Architects” at Rice University, I’ve been a wannabe architect, and the battle cry, “form follows function,” my mantra. It’s ascribed to Louis Sullivan, legendary American architect and Father of the Skyscraper. “Form follows function” fairly defines what we think of as “modern,” and it’s a credo at the heart of the clearest idea I’ve had in a while, being that we should produce e-mail in forms that can be made to function in common e-mail client programs like Microsoft Outlook.
I don’t point to Outlook because I think it a suitable review platform for ESI (I don’t, though many use it that way). I point to Outlook because it’s ubiquitous, and, if a message is produced in a form that can be imported into Outlook, it’s a form likely to be searchable, sortable, utile, and complete. More, it’s a form that anyone can assimilate into whatever review platform they wish at the lowest cost.
“In with the new” is sometimes slow going in the legal realm, but what would a year-end be without taking at least a brief moment to look back before moving on? 2013 may not have been one with the most seismic shifts in e-discovery, but there were some important topics and themes that will no doubt carry on throughout 2014 and beyond:
Technology-assisted review (TAR): 2013 saw law firms and companies testing out the efficacy of more and more electronic tools and processes for slogging through ever-growing volumes of ESI. The conversation, once about defensibility, has generally been replaced with more tactical war stories and cost-benefit analyses as matters where such technologies have been deployed reach the courtroom. Those who hoped for or expected it to be a silver bullet have no doubt seen the light. Nothing about e-discovery is that easy, and expertise is required to make it all work. Whether it’s the seed sets and algorithms of predictive coding or the more deterministic approach of professional linguists leveraging sophisticated keyword tools, the use and acceptance of TAR is an evolutionary process that will continue to gain momentum in 2014 and beyond.