Grammar, Style, and the Rule of Law in E-Discovery (plus Cheesecake)

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I’m a big believer in rules. Rules bring order to what otherwise might be chaos. Rules set expectations. Rules guide human behavior (and sometimes non-human behavior). Heck, rules guide how machines perform calculations, execute tasks, and analyze data.

We need rules.

Admittedly, my rebellious side often suggests to me that some rules are meant to be broken. Take the stop sign in front of my house, for example. I frequently roll through it slowly (looking both ways of course), knowing full-well that the rule is to come to a full stop, even as my wife reminds me the sign mandates a stop and I mumble “stop signs are only suggestions for those of us who drive carefully.” Okay, that’s a poor example, but you get my point.

And then, some rules are rather fuzzy. Take cheesecake. It’s a rule in my house that nothing goes on or in cheesecake except the necessary ingredients. The blissful creaminess, the sweet, yet tart impression it leaves—a good cheesecake does not need anything else. I love strawberries, but it is a rule that one does not defile a cheesecake with them (or any other topping or mixture). Those who do so have made something other than a cheesecake.

So, when my friend and colleague Doug Austin from eDiscovery Today wrote this week that the words “electronic discovery” should, in short form, be spelled “eDiscovery,” it got me thinking—there must be a rule for this literal combining of two words. Doug is not the first to propose this spelling. For years, it has also been debated whether the “e” should be hyphenated or not, whether the E should be capitalized, or even just dropped altogether. It’s a fair and reasonable debate. And it sits right up there in the pantheon of e-discovery lore with the debate over tiff versus native productions (and we all know who’s winning that debate, right?).

In the spirit of trying to solve the industries’ most pressing problems, then, I set about to attempt resolution of this issue once and for all. The question, my friends, is to e- or not to e-.

(Note: There’s a small side issue of slightly lesser import related to whether or not to capitalize the E or the D, but that’s fairly easy).

Since neither Congress nor any other legislature in the world has or likely will weigh in, I turned to the Chicago Manual of Style. For many, this manual is the bible for those who work with words. Since its first publication 110 years ago, it has been the indispensable reference for writers, editors, proofreaders, copywriters and publishers. More than a million copies of the manual have sold since the twelfth edition in 1969. The sixteenth edition was published in 2010 and it remains my go-to guide for writing style. There are of course other style manuals, and the rules are very similar, but I think The University of Chicago Press’ is the most widely used.

So, let’s dig in. First, the easy stuff.

Rule #1

There should be little question that if you start a sentence with the word “e-discovery,” it is proper to capitalize the “E.” Not even the most insurgent linguists and mutinous grammarians could argue with this. The only possible exception is proper nouns or brand names.

Rule #2

With respect to the capital “D” – it is never proper to capitalize a letter in the middle of a word unless that word is a proper name or brand (e.g., eBay or iPhone).

Clearly, based on our first two rules, Doug and eDiscovery Today get a pass for use of the little e and big D because it’s the proper name of his blog, his very brand. But alas, for the rest of us, based on the rules, we need to start sentences with “E-discovery,” and worse yet, “eDiscovery,” as sexy as it appears –I’m sorry, it’s just not correct based on the rules.

Next, we must delve into the slightly more complicated issue—the hyphen. Many of the rules related to usage and punctuation are dependent upon whether words appear in the dictionary. Most commonly, reference is made to the Merriam-Webster’s Dictionary. But while both “electronic” and “discovery” appear in the dictionary, “e-discovery” does not. If e-discovery were in the dictionary that may settle the issue because people would just look it up and use that form. Since it is not, we turn to the rules related to compounding words.

Examining it according to parts of speech, we can see that “electronic” is an adjective that describes or adds a grammatical attribute or meaning to the noun “discovery.” In the Chicago Manual of Style, the rule is to hyphenate before but not after the noun. However, that rule applies to use of both full words. What happens when the compounding is one of what have become known as “e-words,” which clearly seems to apply here. Think e-commerce, e-book. The best example in the Chicago Manual of Style is “electronic mail” or e-mail. The manual says that we should be writing e-mail (with the hyphen). Now, I don’t know how or why, but in recent years we’ve all been writing “email” (no hyphen). But the proper form when one compounds two words in the “e” world in which we now all live is to hyphenate (i.e., e-mail).

We all did that for many years, as I recall. Somehow, we got away from the hyphen. The Associated Press stopped hyphenating email in 2011; the New York Times stopped in 2013 (“due to popular demand” of all things”). What changed? Well, the only thing I could find, actually proves one of the premises referenced above –once a word is published in a dictionary, that usage becomes the norm. And so, guess what happened between 2010 and 2013? Dictionaries began publishing the word “email” with no hyphen.

I did also find some reference on the site of the Oxford Dictionaries that suggests “email” (no hyphen) simply became the most common usage. But even the folks at Oxford say, “when in doubt, hyphenate.”

What happened to email seems to have happened to a lot of words. We just combined them and made a new word without a hyphen and the new, popular usage took over. But, once they are in a dictionary, it seems more official, right?

But I digress. Let’s get back to the penultimate question on e-discovery –the hyphen.

The rules on hyphenation in the English language are highly variable, if not inconsistent. In many contexts, it probably does not matter all that much, and compounding words can be even more complicated. So, what does the Chicago Manual of Style say?

Rule #3

The Chicago Manual of Style clearly recommends the use of a hyphen when compounding two words. The reasoning is a little ambiguous, for sure, but it’s clear in the style manual that their Hyphenation Guide for Compounds and Words Formed with Prefixes that compound words preceded by “e” require hyphenation, except in cases of proper nouns.

There you have it – the “rules” say that “e-discovery” (with a hyphen) is the proper usage.

Look, all the rules aside, the key to all this grammar and punctuation stuff is clarity. It needs to be clear to the reader what you are writing about. I don’t think anyone misunderstands what I mean whether I write e-discovery or I write ediscovery, so I personally think it’s fine to use either.

But for the sake of rules, I will continue to write e-discovery until the word is added to the dictionary.

Uh oh, guess what? I just discovered that Merriam-Webster already has. Does anyone want to guess how they spell it? Check it out here.

In August of 2009, famed LTN editor Monica Bay, in response to a debate then raging through the pages of Law Technology News (the predecessor of Legaltech News), issued an edict that resonated then as it does with me today: “Nope, the e- stays.”

I’m with Monica. Who’s gonna argue with that?

Note: This article was written with a healthy dose of sarcasm and humor, a smidgen of truth, and some sincerity

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Mike Quartararo
Mike Quartararo is the President of the Association of Certified E-Discovery Specialists (ACEDS), the world’s leading organization providing training and certification in e-discovery to law firms, corporate legal departments and the broader the legal community. He is also the author of the 2016 book Project Management in Electronic Discovery and has been successfully consulting in information governance, e-discovery, project management and legal technology for two decades, including 10-year stints at both Skadden Arps and Stroock. A graduate of the State University of New York, he is a certified Project Management Professional (PMP) and a Certified E-Discovery Specialist (CEDS). He frequently writes and speaks on e-discovery, legal operations, project management and technology topics. Reach him via email at [email protected] or on Twitter @mikequartararo.

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