Do you have FOMO? And do you have FOMO about the right things?

Fear of missing out (FOMO) is a pervasive problem in our always-connected world. The Oxford English Dictionary defines FOMO as the “anxiety that an exciting or interesting event may currently be happening elsewhere, often aroused by posts seen on social media.” You can take a quiz to see if you have FOMO … but if you’re worried there might be something important that you could learn from that quiz, you might save yourself five minutes and just admit that yes, you’re afraid of missing out!

via GIPHY

Without a doubt, a lot of the FOMO that people experience on a day-to-day basis is self-defeating. It can leave us regretting our choices, even when we know we’ve picked the best option. But there are times when we should have FOMO. Sometimes, we actually are missing out on something. And when that something is important, you better believe we should have FOMO about it.

What does this have to do with ediscovery? Well, if you’re not both

• looking for discoverable information online and
• collecting it in a format that keeps it dynamic all the way through to presentation,

we’re here to tell you that you should be worried about what you’re missing.

Dynamic Web Evidence Is the Future of Ediscovery

There’s one simple reason that people are struggling with the fear of missing out: because we’re constantly online. Our lives—including our business—happen on the internet. You’re reading this on the internet. Chances are that before you clicked over here, you were on social media, or skimming the news, or buying something, or researching a new restaurant or coffeemaker or a potential dating partner. Maybe you were on a tropical-fishkeeping forum getting some advice about how to keep your cichlids happy, perusing employee reviews on a company you’re applying for a job with, or checking out this cluster of symptoms you’ve got to see whether you’re coming down with the flu. Or you might have been buying some stocks, researching an upcoming professional conference, or researching something for a client.

Wherever you were, you were probably both gathering information and leaving certain clues about who you are and what you care about. Litigants are doing the same thing, and they’re creating a wide trail of discoverable evidence behind themselves.

But wait, you say, hold on just one minute. Is the web really a source of ediscovery? Nobody you know is using web evidence. What’s even out there on the public internet that would be relevant to any of your current cases?

If you haven’t looked, you don’t know. Just what are you missing?

Suppose a former employee has filed a gender discrimination charge against your client. She says that her supervisor was biased and constantly demeaned women. You do a quick online investigation to find out whether anything pops out about the supervisor or the complainant. And bingo, there it is: the complainant posted on social media a year ago about how much she enjoyed working with her supervisor and how inclusive the work environment was.

Or maybe not. Maybe, instead, you find the supervisor’s profile on a Reddit channel griping about how women today think they’re entitled to men’s jobs when they really should be home cooking and cleaning and having babies. Even when there’s bad news online, though, don’t you want to find it before the complainant confronts you with it?

Remember, too, that we used to talk about email in discovery like it was this insurmountable challenge. Not that long ago, lawyers would agree to leave email out of ediscovery because they didn’t know what to do with it! Can you imagine ediscovery today without email? So, what will lawyers say 10 or even five years from now about trying to do ediscovery without internet evidence? We guarantee that online data is only going to expand. So, you can stand on the sidelines and miss out while everyone else masters web evidence, or you can recognize the wave of the future now and start figuring out how to do ediscovery on the web.

Bottom line: if you’re not looking online for discoverable data, you’re missing out.

But wait, there’s more. Notice how we said that “dynamic” web evidence is the future of ediscovery? Let’s look at why dynamic evidence is where it’s at—and static capture is so last century.

With Static Web-Capture Methods, You’ll Still Be Missing Out

The challenge of finding evidence online isn’t the only reason that ediscovery professionals have historically avoided web data. There’s also the question of what to do with that evidence when you find it. How do you collect and present it in a way that a judge or jury can understand? Most lawyers have fallen back on familiar technologies like screenshots or PDF images that try to reduce the internet to a printed page. But these static methods fail to capture the experience of navigating through a website or a social media platform.

What sets the internet apart from any previous form of communication is its interactive nature. Even if you’re not communicating directly, you’re clicking through links, watching videos, seeing who else liked or commented on a social media post, and generally falling into rabbit holes. Americans spend 23.6 hours per week online—basically one full day, or the equivalent of a part-time job—and we’re online so much because the web is engaging, captivating, and even addictive.

You know what’s not captivating? Looking at a printout of a website and trying to figure out what it means or how the pages are related to one another. That’s why, if you’re going to use online evidence, you need to capture it the way it actually looked and give your audience something that they can explore, navigate, and engage with.

Let’s consider that workplace discrimination hypothetical again. If you try to show screen captures of the complainant’s comments on social media, you’ll have to flip through multiple pages to see how the conversation unfolded. How convincing will that really be? What if, instead, you could display a fully interactive site where you can click through different comments, reactions, and links in a natural way?

Or suppose you’re defending an intellectual property case. You could show the jury a sheaf of printed PDFs with your client’s website on them and try to explain that this concept or product was on your client’s site before the plaintiff ever started using it. Or you could load up a fully dynamic captured version of the site and navigate through it, showing the factfinder—in real time—everywhere that the disputed content appears.

In short, static capture methods won’t give you the richness or the “live” experience you need to persuade a judge or a jury—or an opposing party—of the strength of your evidence. But don’t worry: there’s a better way to collect and present website evidence.

With Dynamic Evidence, You Won’t Be a Victim of FOMO

If you’re ignoring the internet during ediscovery, you’re bound to miss out on something—and as our lives are increasingly online, the information you don’t see might be the critical evidence that could make or break your case. Plus, if you’re using static capture methods like screenshots or PDFs, your audience is going to miss out on the context and comprehension gained from fully dynamic evidence.