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E-Discovery Trends for 2013

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.

 

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