Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m M a y 2 0 1 4 19 by dera j. neVin tECH support Puzzle or mystery? When adding more to 'too much' can't help you in e-discovery. t here's an essay in What the Dog Saw called "Open Secrets" in which Malcolm Gladwell highlights the distinction between puzzles and mysteries made famous by national security expert Gregory Treverton. In that essay, Gladwell explores the significance of that distinction for investigative approaches in contexts as dispa- rate as the Enron litigation and national security. In the example cited by Gladwell, "Osama bin Laden's whereabouts are a puzzle. We can't find him because we don't have enough information." Gladwell observes that because puzzles are often buried secrets, resolving the puzzle often requires adding informa- tion, such as identifying who has with- held information. The key to a puzzle is often to obtain specific and correct factual information, and to test the veracity and accuracy of the informa- tion obtained. Puzzles get solved when specific, correct, and complete informa- tion is available to the puzzle solver. In contrast, "The problem of what would happen in Iraq after the toppling of Saddam Hussein was . . . a mystery. It wasn't a question that had a simple, factual answer. Mysteries require judg- ments and the assessment of uncer- tainty, and the hard part is not that we have too little information but that we have too much." Often in mysteries, everyone has a position or idea on what might be true, but it is not clear whose version is true or why. Mysteries fre- quently involve information in public sight; we know what's there, we just may not know what it means or why it matters. In "Open Secrets," Gladwell advances the theory that Enron — and by exten- sion most complex regulatory cases — are mysteries, not puzzles, and law enforcement and litigation theory has been approaching these cases through the wrong lens — but I digress. Gladwell's point is the distinction between mysteries and puzzles is not trivial, because "puzzles come to satisfy- ing conclusions. Mysteries often don't." Each also requires a different investiga- tive response. If things go wrong with a puzzle, it is possible to increase the col- lection and testing of information until the puzzle is solved. However, increas- ing the volume of information in response to a mystery may only make things worse. Frequently, the mystery is not resolved in any one particular information item, but by looking for patterns across available information, or by separating the signal from the noise. Mysteries benefit from subtraction and analysis. I find Treverton's distinction between puzzles and mysteries as discussed by Gladwell helpful in explaining "search intent" in e-dis- covery, and in highlighting the benefit of understanding the case and knowing why one is adopting a specific e-dis- covery strategy. This makes sense, after all, because it is possible to characterize most e-discovery as a form of investiga- tive approach to the identification of electronic records for use in litigation. Often, it is assumed an e-discovery problem is a puzzle and parties imme- diately seek to increase the available amount of information. However, often, the underlying problem the e-discovery aims to resolve is better characterized as a mystery, and increasing information may not yield a satisfying resolution. Therefore, at the outset of each case, I try to determine whether it is aiming to resolve a puzzle or a mystery; this is the "search intent." My assessment of search intent affects my approach to the identification, collection, and review of information. For puzzles, I aim to increase the information I have When adding more to 'too much' can't help you in e-discovery. here's an essay in What called "Open Secrets" in which Malcolm Gladwell highlights the distinction between puzzles and mysteries made famous by national security expert Gregory Treverton. In that essay, Gladwell explores the significance of that distinction for investigative approaches in contexts as dispa- rate as the Enron litigation and In the example cited by Gladwell, "Osama bin Laden's whereabouts are a puzzle. We can't find him because we don't have enough information." the puzzle is solved. However, increas- ing the volume of information in response to a mystery may only make things worse. Frequently, the mystery is not resolved in any one particular information item, but by looking for patterns across available information, or by separating the signal from the noise. Mysteries benefit from subtraction and analysis. between puzzles and mysteries as discussed by Gladwell helpful in explaining "search intent" in e-dis- covery, and in highlighting the benefit of understanding the case and knowing why one is adopting a specific e-dis-

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