Discovering Digital Truth — a new series

March 11, 2020

A new era

We are entering a new era of digital information. The scale, complexity, and rate of generation is greater than we’ve ever seen. This leaves us with a societal challenge in how we consume and interpret this data.

The idea of digital truth and being able to figure out “what happened” in a world of increasing noise, is critically important today. With new data sources being introduced daily, volumes are getting bigger and complexity is increasing. Yet, there is an increasing movement in the eDiscovery industry by service providers and software platforms to ultimately standardize how we approach eDiscovery. This standardization is absolutely the wrong approach.

The discovery process is about the discovery of facts, not about the retrieval of documents. But rather than challenging ourselves to use the continuously evolving discovery levers presented by the Courts (e.g., relevance, proportionality, specificity, phasing, stipulations, etc.), we instead attempt to standardize the discovery process to something akin to best practices in the late 2000s.

Perhaps this is due to the over-consolidation of providers in our industry. Or the attempt by private equity investors to standardize everything to raise profit margins. Regardless of the cause, the outcome is that law firms and the clients they serve are left in the dark when it comes to the discovery of relevant facts. Instead, they are handcuffed by the limited insights that can be gleaned from a collect, process, search, review, produce, rinse and repeat mentality.

This blog is our humble attempt to reframe that conversation. And we’ll attempt to address two challenges that impede us in our quest to find digital truth.

This blog is our humble attempt to reframe that conversation. And we’ll attempt to address two challenges that impede us in our quest to find digital truth.

First, how do we address the ever-increasing complexity of modern data sources? What do the forensic artifacts mean? Where does the data live? What are the new metadata fields available to us?

Second, how do we achieve these insights at scale? How do we truly harness the promises of the AI-revolution and accelerate insights for our clients? How do we share insights across similar cases and subject matters? How do we share these insights with the court and opposing counsel in a smart and defensible manner?

I hope you will all join us on our journey to discover digital truth and share your thoughts and vehement disagreements with us. Here’s to digital truth!

Why is digital truth so important to us?

Here are some unique scenarios we’ve encountered in the past year that elevated this issue for us.

Spotting the fakes

One trend that Blackstone has seen is a huge increase in fake evidence presented in cases. We’ve seen two conflicting versions of a contract, two versions of a chat history, and other suspicious evidence that’s been produced by other parties.

We dived deeply into this issue when we served as experts on two conflicting versions of a Skype chat in a trademark matter. Understanding how data is created, stored, and visualized was a critical component of our insights – insights which were useful in convincing the judge to award sanctions against the opposing party. Standard collection, processing, and searching could not have obtained these insights.

An increase in fake information is one of the reasons that digital truth has become a necessity at Blackstone. Creating fake “evidence” is now much easier to do. The downside of the proliferation of all these tools is that it’s much easier to misrepresent.

Misinterpreting data – beware reporting without understanding!

It is not only when something is intentionally fake that there are problems. A lot of mistakes can be made through the misinterpretation of data.

In Denmark, law enforcement had secured a lot of criminal convictions based on the interpretation of cell tower data. They later discovered the software being used to triangulate the location, based on cell tower data, was flawed and was not providing accurate location information. They had to review over ten thousand convictions that were based on that evidence.

Don’t just rely on what a forensic tool report says, make sure you understand the underlying data and verify the insights with an expert – especially if a conviction or a legal decision is on the line. Insight from one source needs to be corroborated and established as true. It needs to hold up in court when it’s challenged by an expert.

The experts

This blog series will feature pieces from Blackstone’s lead forensic investigator, James Sahm. Sahm is a testifying expert who regularly defends his findings in court. Previously a member of the SOC team responsible for cleaning up one of the most notorious data breaches, he has some fascinating insights in forensics.

Also contributing is Jack Farley, who is already published in the forensics community, with a focus on tool development and innovation. As a member of Sahm’s team, Farley helps to automate the lead investigator’s insights at scale.

Stephen Tryon is Blackstone’s analytics and AI lead, which sits within the document review side of the business. His vast experience lies with training deployments of AI technology into law firms, training portable models.

What you’ll get from this series

This new series is designed to connect the forensic and AI experts with the legal practitioners. It’s designed to help in-house counsel think about their cases and ask the right questions. To really know what is knowable.

The problem is that a lot of the interpretation that needs to be done is not at the document level anymore; it’s actually at the forensic artifact level. We’re going to share relevant issues on the forensics side that can change how you think about cases.

The aim of this series is to arm lawyers with the ability to grapple with the state of their digital information and maximize impact for their clients.

It has become increasingly more difficult for a newcomer, or a lawyer without a technical advisor, to find the information they need. This is because there is just so much different information available out there on the cloud, locally on the computer, or on an IoT device.

Conversely, if you’re working with a team that actually knows all of the available information and where to get it, it’s much easier to figure out what truly happened. It’s been two years since we’ve had an investigation and not found the answer, and it’s because there are so many ways to corroborate your timeline.

Law firms are grappling with the challenge of creating value for their clients, and we want to make sure that we enhance your legal practice as much as possible. Most importantly, we want to make sure that our clients are optimized, spending their time on key documents, key insights and building a case strategy, instead of spending time managing a vendor that is not their strategic partner. Join us on our quest for digital truth.