Proportionality in Ediscovery: Getting Beyond the Academic and Practitioner Perspective

The concept of proportionality in discovery is not new.  In fact it has been around for awhile and I will not add to the technical or academic dialogue here.  I have spoken on this recently at the ACEDS conference and will be talking more about this at the upcoming InsideCounsel SuperConference.  

Today I am at the Enterprise Data World conference and perhaps that is why I am thinking 'data' in terms of of bits and bytes.  The vast array of information contained in data is staggering and the proliferation of data across society and in our organizations continues to accelerate.  The folks at this conference are struggling to get hold of this data and organize it for better quality and accessibility.  Ediscovery, to this crowd, would be a small fraction of the overall challenge they are tackling.  

So in this post I am seeking to simply frame proportionality as an inevitable development resulting from the profound expansion of the data-verse (data universe) not to mention social media.

Point 1: The expanding digital universe will exceed 35 zettabytes by 2020, IDC predicts.
In 2009, global diital data topped 800,000 petabytes and was projected to reach 1.2 mil­lion petabytes in 2010. Storing 1 million peta­bytes on DVD would generate a stack of discs that reaches the moon and back. However, that rate of growth—62% in one year—pales compared with IDC’s prediction that the figure will top 35 zetta­bytes (36.7 million petabytes) by 2020, or 44 times as much as 2009. That stack of DVDs would reach halfway to Mars.
(following graphic originally posted by Tech News Ninja here)

Point 2: Usage of Social Media is increasing: (from comScore's US Digital Year in Review 2010)

Point 3: Social media represents significant ediscovery challenges:

The SCA is a formidable obstacle for parties looking to collect data from a social network.  Often the only option is to seek voluntary waiver by the person of interest.  Needless to say, more often that not any request to collect and analyze this type of data will need to be targeted and precise so as to avoid privacy concerns and other rights.  If the information is available on a public-facing portal of a social network then the collection may be easier to accomplish though the ability to do a targeted collection is somewhat limited by the user interface and/or local API.  Further it is difficult to think of this dynamic and changing data as a "document" under traditional ediscovery practices and so reviewing and analyzing presents unique challenges.

Point 4: Data Governance is becoming a stronger practice and discipline - it is also on the rise: (graphic created by

Conclusion: Data - how we use it, how we access it, where we create it - is changing.  All of this leads to more and more data from more and more sources.  The MDM/Data Governance movement is seeking to organize data inside organizations and seeks to make information (which is what data contains and transports) more accessible.  So while the universe of data grows so does the ability to seek and capture only the relevant or useful information (See graph below for a non-scientific illustration.)  So proportionality could eventually be "built into" our ediscovery methods and practices - it simply will not be feasible any other way.

Joshua KubickiComment