Since I began covering e-Discovery in 2008, a lot has happened. Companies have been hard-pressed to come up with a cost-effective, yet manageable way to collect, gain access to and review relevant information created within its four walls and in the cloud. Companies experimented with outside counsel and in-house e-Discovery platforms. Vendors promised exciting new technologies from enterprise search to workflow management to predictive coding, aimed at decreasing cost, effort and risk, while increasing reliability, accuracy and defensibility. And yet, we still don’t always know what’s working well within the enterprise. Thanks to a new report by FTI, we have an inside look at how companies are using e-Discovery, their best practices and their expectations for the future.

My, How They've Grown

We spoke with Mike Kinnaman, senior managing director at FTI, about the report, which summarizes the advice of 31 inside counsel about how they streamline and reduce the cost of e-Discovery. What the report revealed is helpful not just to other companies that are eager to offset costs and risk, but for industry vendors that want to deliver products that meet the needs of companies.

One of the first things that one notices when paging through Advice from Counsel: An Inside Look at Streamlining e-Discovery Programs is the sentence,

The key conclusion from this year’s report is that e-Discovery is no longer a specialized skill, but a process in which every legal department must be versed."

This was not always the case, but over time, both companies and their general counsel have evolved to develop the necessary skill sets that e-Discovery has come to demand. It is no longer acceptable not to know what to do or how to do it.

That being said, it’s not clear how they are learning what they need to know about e-Discovery -- though we can imagine it’s through lots of trial and error, hands-on learning. Which is another surprising element revealed in the report -- collaboration has become more accepted and even encouraged as a resource to seek out best practices. This year’s Legal Tech NY reflected this by offering more panel discussions and breakout sessions dedicated to niche topics of e-Discovery, such as how to manage budgets and “big data.”

Resisting the Seduction of Shiny Technology

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Along with exciting stats of what companies are doing within the realm of e-Discovery, the report offers the eight most potent techniques and best practices from those interviewed. If you think you know what companies are doing, think again. There is great contrast between what vendors are offering and what companies want to help them manage their needs.

For instance, the report indicates that companies are no longer seduced by promises of shiny new technologies. Over time they have come to learn that while

Technology plays an important role in streamlining e-Discovery and reducing its overall cost, […] there exists a healthy amount of skepticism about technology’s ability to “solve” the e-Discovery problem."

As a result, counsel advise their peers to understand their own requirements first, then select the tools that best meet those needs.

Furthermore, when it comes to implementing e-Disovery solutions, companies are learning that bigger isn’t always better. By developing and carrying out information retention and destruction programs is vital to keeping information manageable. To get there, companies need to know where their data is and exercise as much control over your data as possible.

Finally, while many technology solutions may thrive from a groundswell approach, e-Discovery success comes down to the quality of leadership guiding the initiatives. That this has been officially recognized may mean that IT, Legal and C-Suites are finally coming together to share information, access and control over the process.

Weighing Their Options 

Two other trends highlighted in the survey may pique the interest of vendors in the e-Discovery marketplace. For all the talk about managing data in the cloud and predictive coding, companies are not as enamored with solutions available.

42% of the respondents noted that they have a tool to preserve or collect data from the cloud or social media, and 52% noted that they would be considering cloud offerings for their e-Discovery process in the future, which is up from 47% in 2010. Yet despite this move toward adopting cloud-based solutions, many companies are still concerned about issues of security, confidentiality and the newness of the technology.

On the predictive coding front, 81% were familiar with the term and many had a positive view. However, most are still reluctant and are only interested if predictive coding would be equally defensible, faster and cheaper.

Overall, FTI’s survey shows us that the enterprise is getting smarter when it comes to e-Discovery. At one point, it seemed that e-Discovery technologies were outpacing the speed at which companies were adopting best practices, but now we know that companies are more concerned with being strategic than having the shiniest tool. That’s progress.