The folks at Clearwell Systems, whose platform works to streamline the eDiscovery process, have looked into their crystal ball and have offered a few predictions for the new year. Among them, trends that respond to financial and legal stresses as well as a need for more collaboration. The most compelling of their predictions lay within the realm of compliance and technology.
For the most part, there predictions aren't surprising our outrageous. They take aim at the very crux of what eDiscovery proselytizes -- show your work, collaborate, adapt and take control!
Drum roll please -- Top 10 Trends for eDiscovery in 2009:
- Government Investigations Increase: If you thought 2008 had a lot of law suits, you ain't seen nothing yet. An increase in economic tensions and the increase in high-profile scandals will most probably lead to a rise in government data requests, compliance audits and investigations from both a state and federal level.
- Corporations Take More Control over eDiscovery: Companies are desperate to save a buck or two, so they'll be more likely to secure more ownership over the eDiscovery process to enhance control and reduce costs. Leveraging in-house technologies, internal legal teams will deploy early case assessment methodologies and data reduction strategies. Not only will taking control save money, but by becoming more involved in the process, general counsel will collaborate more with outside counsel. This saves time as well.
- Industry Push for Collaboration: Those who choose to be more inclusive and collaborative in the new year will benefit from reduced costs and conflicts.
- Federal Rules of Evidence (FRE) 502 Helps Automated Reviews: To date, the use of claw back agreements, intended to protect organizations against the inadvertent disclosure of privileged information, have been sparingly deployed since the legal standards have varied widely from jurisdiction to jurisdiction. By being able to automate analytical tools, high costs associated with the traditional “eyes-on” attorney review processes can be significantly diminished in 2009.
- “Showing Your Work” Becomes Mandatory: More compliance will increase the demand for eDiscovery technologies that are transparent, auditable and potentially supported by experts who can detail how searches are performed. Correspondingly, cases will likely emerge where counsel is found to be negligent after using tools and techniques that have subsequently failed judicial scrutiny.
- Solving Colloquial eDiscovery is Top of Mind: Adapting to the way technology changes the way people communicate in business, may be key to eDiscovery in 2009. Whether voicemail, text messaging, blogging, instant messaging, Web 2.0 content and other new media of business communication will require flexibility.
- Global Economic Downturn Drives Global eDiscovery: The failing economy will aid the global need for eDiscovery. Crossing international borders, eDiscovery solutions will evolve to address privacy and data protection issues in line with international compliance requirements, as well as provide foreign language and in-country processing and review abilities.
- Information Stores Will be Mapped: Siloed data sources have long been a problem for corporations. Out of necessity, the functionality to sequester, retain, search and produce electronically stored information (ESI) across the enterprise, will make it imperative for companies to be able to map their data universe. Failure to do so will make meet and confer conferences and “inaccessibility” arguments (per the Federal Rules of Civil Procedure) difficult, if not impossible.
- Integration Happens Across the EDRM Framework: The right side and the left side start to work together. The development of eDiscovery standards and further adoption of the Electronic Discovery Reference Model (EDRM), more companies will provide integrated solutions.
- Information Management Shows Positive ROI: Validation comes in the form of minimized costs, litigation and time spent searching and sorting. Companies who continue to ignore the need for eDiscovery technologies will end up broke and in jail.
Predictions or Just Good Advice
These predictions not only serve to make eDiscovery more of a business process than in past years, they also reinforce the eDiscovery industry's efforts to highlight the return on investment companies can expect when they implement information management protocols. Incorporating eDiscovery solutions into your business model is not only a trend itself, it's essential to maintaining and meeting regulatory standards. Getting ahead by getting on board now, especially during tough times, may make you more likely to emerge after the storm.
Based on realistic indicators within the global economy, there's no reason to doubt that these predictions won't come to fruition. Not only are these possible trends, they are good advice for any company. Make 2009 the year to be prepared for anything.