Seven years ago, I wrote an article about what I called the eDiscovery Disconnect—the gap between the work being done on data and the legal strategy that drives discovery. Unfortunately, not much has changed since then, but the stakes have only grown higher. The volume of electronically stored information (ESI) continues to explode, the technology supporting ediscovery has advanced, and the consequences of mishandling discovery are more severe than ever.
Yet, the same fundamental issue persists: lawyers are still not engaging deeply enough in the ediscovery process.
The eDiscovery Disconnect happens when lawyers aren’t directly involved in managing ESI. It’s that moment when the "legal" side of discovery gets handed off to litigation support or a vendor with little or no input from the attorneys responsible for case strategy. This disconnect is more than just a missed opportunity—it’s a liability.
The Growing Complexity of eDiscovery
The challenges of ediscovery have only multiplied in the past seven years. Data sources like mobile devices, collaboration platforms (think Slack or Teams), and even AI-generated content add layers of complexity. Courts are increasingly focused on how parties handle preservation, collection, and production, with sanctions looming for missteps.
Despite these developments, the engagement of attorneys in the ediscovery process remains minimal. Many lawyers still view ediscovery as overly technical, expensive, and separate from their role. But the truth is that ediscovery is at the heart of modern litigation—and ignoring it risks leaving critical strategic decisions in the hands of non-lawyers who don’t understand the implications.
The Disconnect in Practice
Let’s revisit the reality of the disconnect:
- The Gap in Communication: Litigation support and vendors know the tools and the data, but they don’t know your case strategy. If you don’t guide them, they’ll make assumptions—or worse, overlook opportunities to align the data with your goals.
- Missed Opportunities: Without understanding how data will be used at trial, mediation, or arbitration, lawyers lose opportunities to craft compelling narratives or present evidence effectively. To do that, you need to think about how you will want to present data BEFORE you even ask for it or collect it.
- Wasted Resources: Poor communication and unclear goals result in inefficiencies, skyrocketing costs, and unnecessary review of irrelevant data. We have the tools now to make strategic, reasoned decisions to engage in targeted preservation and collection, yet we ignore those by having technologists “handle it” instead of the lawyers being involved.
Take the same example I shared years ago: A lawyer needs deleted text messages from a phone, complete with images and all accompanying metadata, to support a motion. The vendor provides a standard report in Excel, separating text from images. The impact of presenting messages as they appear on that device —something a judge or jury can instantly recognize—is lost.
This problem persists because the lawyer didn’t know to ask for the right output—and the vendor didn’t know what the lawyer needed.
The Lawyer’s Role in eDiscovery
Here’s what I said seven years ago, and it’s just as true today: The end game has to come first. As the lawyer, it’s your job to determine the story you want to tell, the evidence you need, and how you’ll present it. Every decision about the data should flow from that strategy. Yes, I know that the story will change as the facts evolve, but I also know that 90% of the time, your client knows exactly what the story will be.
Ask yourself:
- How do I want to present data effectively during a deposition? Attached to motion papers? In a complaint?
- How will I authenticate the various data sources when it comes to trial? If my IT department screenshots a whole bunch of social media messages from customers, who authenticates them?
- What specific communications are critical to my narrative? How will a judge or jury want to see them visually? In what format?
- How can I streamline the review process to focus only on the key issues that matter and avoid expending resources on data that is not relevant?
If you don’t know the answers to these questions, you can’t expect your litigation support team or vendor to know them either.
Closing the Gap
The good news is that solutions exist to bridge the eDiscovery Disconnect. Technology has advanced significantly, providing tools and resources to help streamline the process. But tools alone aren’t enough—lawyers must take an active role. Success in ediscovery requires not just understanding the technology but also ensuring that the process aligns with your strategy and the goals of your case.
By engaging early and staying involved throughout the process, lawyers can make sure that data decisions are guided by strategy, not left to chance. This approach ensures the evidence you present supports your narrative and achieves the impact you need.
Why It Matters
Since my original article, one thing has become abundantly clear: ediscovery is no longer a niche skill. It’s a core component of litigation, and every lawyer must develop the knowledge and skills to navigate it effectively.
The stakes are too high to leave critical decisions in the hands of others. Take charge of your ediscovery. Close the disconnect. Your cases—and your clients—depend on it.
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