Like any relatively young industry, the e-Discovery technology market is undergoing a process of maturation. In a relatively short time span, e-Discovery has evolved from a somewhat isolated activity to an expansive, business-critical operation.
The aggressive growth of corporate electronically stored information (ESI) -- which more than doubles year over year -- has hastened this expansion. A decade ago, few would have predicted that e-discovery practices now involve other critical functions, including information governance, records management, social media and cyber-security, just to name a few.
The relationship between these various disciplines is symbiotic. Trends and developments in one area tend to impact all others. The technology that supports these various endeavors has evolved greatly as well. The e-discovery technology market, once flooded with niche players focused on individual processes, has moved in the direction of dynamic, integrated platforms, capable of meeting a variety of needs.
Forecasting trends and the futures of e-discovery can be challenging. A single case ruling or Federal rule change can send the legal world into a tizzy and force organizations to adjust existing processes and strategies. The scene is equally fluid on the technology front, where vendors are constantly innovating to address new challenges.
If recent years are any indication, 2013 promises to produce its own bevy of hot new e-discovery trends. Here are some that my colleagues and I are keeping an eye on for the coming year:
The Convergence of E-Discovery and Information Governance
Meeting court-mandated discovery deadlines can be challenging, especially when it comes to identifying, analyzing and collecting all potentially relevant ESI stored on both structured and unstructured data sources, such as file servers, content management systems, desktops, laptops, mobile devices, archives, Cloud servers and other storage assets.
And in today’s world, ESI is not only voluminous, it comes in different velocities and varieties. Identifying which IT assets store the most relevant ESI and then preserving it to prevent spoliation or destruction is the holy grail of early stage e-discovery.
To meet judicial expectations, both IT and legal must work collaboratively to ensure a defensible preservation process, which includes issuing legal holds, monitoring the systematic suspension of corporate disposition policies, ensuring employee compliance, collecting the ESI and storing it for downstream attorney review. While on paper this may appear to be easy, the process grows more complex as the gathered data has to be de-duplicated, indexed, categorized, reviewed and produced, generally within very tight time-frames.
For organizations that have embraced information governance (IG) practices that incorporate legal requirements, the challenge may be reduced.
IG policies are designed to address the basic process of managing information across its full life-cycle, from creation to disposition. By its nature, legal discovery requires information. For this reason, IG and e-discovery are becoming inexorably interconnected.
Effective archiving and indexing of data aid in the identification of ESI potentially relevant to a case, thereby reducing the risk of noncompliance for a production request. Integrating an organization’s IG systems with specialized e-discovery software not only minimizes risk but also delivers huge productivity gains by simplifying and shrinking the time required for ESI preservation and collection efforts.
Forward-thinking organizations already incorporate e-discovery best practices in their information governance initiatives. In the future, other organizations won’t have a choice but to follow their example.
The Application of Predictive Technologies Across all E-Discovery Phases
While 2012 may go down as the year of predictive coding, we are merely scratching the surface of how predictive technologies can be ultimately leveraged.
Currently, the conversation surrounding predictive technologies is framed almost exclusively around document review -- marrying machine learning and human expertise to classify and prioritize ESI. It’s really leveraging the best of both worlds -- human judgment on the one hand, and the speed, consistency and tirelessness of a machine on the other.
This makes sense from the standpoint that review accounts for the largest portion of e-discovery costs. However, it does not address that organizations are looking for greater control of e-discovery much earlier in the process.
ESI review occurs relatively late in the litigation life-cycle, often after critical strategic decisions have been made and significant costs, time and resources have been incurred. It is important to keep in mind that a majority of cases settle. Large sums can be saved if informed decisions can be made earlier in the process.
Properly applied, predictive technologies can give legal teams early insights and better understanding not only of the potentially relevant evidence, but also of their case strengths and options that can drive these savings. The next evolution of predictive technologies will be its transition outside of the review bubble into the earlier stages of the discovery process, prior to ESI collection.
The Globalization of E-Discovery Beyond the EU
Globalization has touched many parts of the corporate world. However, many attorneys have not had to address the various data privacy and e-discovery laws of foreign nations. The attention that is paid to “cross-border” e-discovery has been confined mostly to developments in the European Union, where member states are in the process of ratifying new data protection regulations. But these regulations are hitting much closer to home.
Global organizations continue to expand their data footprint into the emerging economies of South America and Asia. To properly support the reality of global business, American legal teams need to educate themselves on the complexities of transnational litigation. For instance, many people might be surprised to learn that data protection laws in Argentina closely mirror those in the EU, while China is extremely reluctant to allow ESI to leave the country and harshly punishes those who violate existing data protection laws.
International cases frequently present attorneys with a dilemma as they are forced to choose which country’s laws to violate. Getting cooperation from their foreign counterparts can be difficult or impossible.
Several countries have severely sanctioned local attorneys for violating local rules to assist their American associates. For a company that faces international litigation, a case may come down to evaluating risk versus benefit on the basis of discovery rules rather than the merits of their case.
Compounding this dilemma, many e-discovery technologies are not particularly suited for projects involving foreign data and can actually exacerbate risks. In addition to seeing a greater push towards education surrounding international discovery laws, e-discovery software providers will continue to advance their technologies to better meet the compliance needs of global organizations.
The Continued Migration of E-Discovery to the Cloud
The rapid adoption of cloud computing has revolutionized how organizations store ESI and engage with technology. Cloud computing activities run the gamut from simple access to unlimited data storage to hosting software owned by a company to providing a subscription to use the functionality of software owned by someone else. The impacts of the Cloud on e-discovery technology will continue to be equally transformative in 2013 as more and more organizations begin reaping the benefits of cloud hosting.
Cloud computing allows organizations to focus internal resources on their core competencies and outsource the management of software systems to partners who are experts in technology. Organizations looking to deploy an e-discovery system often need to begin using the technology as soon as possible in response to deadline-driven demands.
Cloud-based systems can usually be up and running in as little as 48 hours. They also offer scalability as discovery demands change -- without long lead times or additional IT resource requirements.In the past, fears about data privacy and security impeded wider adoption. However, those concerns have been significantly assuaged by the growing number of cloud providers that have implemented strong security controls and have subjected their services to stringent auditing.
The Expansion of E-Discovery Outside the Litigation Bubble
By definition, e-discovery is a legal process most commonly applied during litigation. However, many e-discovery practices are applicable in other areas. For example, a typical regulatory investigation involves an organization being compelled to turn over ESI concerning specific business units, employees, keywords or dates. In fact, regulatory inquiries often involve tighter deadlines and have less room for negotiating more favorable search parameters than civil litigation matters.
Similarly, a company’s internal investigations usually involve sifting through large volumes of ESI to find relevant evidence to a potential claim. Since many internal investigations are conducted surreptitiously, there exists an added need to identify, analyze and extract valuable information from multiple data sources without involving large numbers of people.
Organizations are starting to recognize that the processes and technologies now used primarily for managing litigation-related e-discovery have broader utilization for departments outside of legal (e.g., Compliance, Records Management, HR, etc.). In the not too distant future, we will see organizations proactively utilize the more advanced e-discovery applications to ensure sensitive data, such as valuable IP or personally identifiable customer information, is adequately protected on an ongoing basis.