How to Interpret the Rules of Law as Technology Changes

Even technology law struggles to keep up with technology.  This story gives an example . . .

An inexact tenet of eDiscovery theory is that records should be produced in "native" format.  Thus an Excel spreadsheet should be produced as a fully functional Excel file (with all the rules, algorithms and metadata) rather than a printout.  The native format allows the recipient to understand the rich design and functionality of the spreadsheet.

However, as technology evolves, notions like "native" format become subject to debate.

What is Native Format in the Cloud?

It is easy enough to understand the native format of a desktop file, but what is the native format of Gmail messages?  The messages are processed and stored by a cloud provider that is often uncooperative with eDiscovery litigants; the precise technology Google uses in its cloud is little known.

Subjective Standards of Compliance Reign Supreme

Craig Ball is a widely-followed eDiscovery expert.  He is a strong proponent of production of records in "native" format.   But when faced with the question of "native" format for Gmail, he demonstrated how subjective the tenets of eDiscovery can be.  He acknowledged that literally speaking the native format is whatever exists in Google's cloud.  But he acknowledged that to strive for eDiscovery in that format is impractical.

Thus, Mr. Ball argued for a pragmatic interpretation of the word "native."
spirit of compliance
Standards of Law Evolve
 He said that the goal was not literally to obtain data as it existed on one or more machines out there, somewhere.  Instead, it was to get the relevant data in "the actual form or forms that are best suited to supporting what we need and want to do with the data."  His standard is based on goals rather than the literal way that data are stored.

So, he suggested that in the case of Gmail, the party producing records in eDiscovery open a new, special Gmail account and "populate it with responsive messages and turn over the access credentials for same to the requesting party."

Cloud Computing eDiscovery | Trade Metadata for Convenience

In other words, Mr. Ball suggested producing the required records in the cloud itself.  He acknowledged that this suggestion would cause some metadata to be lost.  His suggestion would also make the records not susceptible to search and review by means of popular desktop eDiscovery processing tools like Concordance and Summation.

But Mr. Ball felt his suggestion was the most effective way to reach the goals of eDiscovery, which was to give access to as much relevant data, including metadata, within the constraints of time, costs and available technology.

Craig Ball, "What is Native Production for E-Mail?" July 2, 2013.

A More General Lesson for Lawyers and Risk Managers

Mr. Ball's specific suggestion for Gmail in eDiscovery illustrates a more general lesson about technology law.  Rules that sound objective and concrete -- like the requirement for native format -- fade into vagueness and subjectivity as all of the ramifications of technology are considered.  Whatever we think computer technology is at a moment in time is commonly rendered obsolete a few years later.

So the rules and definitions we state today soon have to be interpreted according to the underlying goals and objectives of law, not the literal language that an old court or legislature may have chosen at a point in time.

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