E-discovery matured in the past year, as concepts and themes like predictive coding and early case assessment (ECA) took on more actionable, serious tones.
Increasingly, e-discovery demands involve other electronic information disciplines, like records management, cyber security and corporate compliance. This has brought a larger, more diverse group of stakeholders to the e-discovery table and transformed e-discovery to part of a larger, interwoven information governance (IG) framework.
But the change is challenging, and many organizations are just beginning to apply learned e-discovery principals that can aid defining a comprehensive IG plan.
It's never easy to forecast e-discovery trends. The legal standards and case law that govern e-discovery requirements are fluid, and the technology that supports these requirements continues to innovate at a blinding pace. The vendor market keeps flushing out niche, single service offerings in favor of more dynamic software applications that can handle corporate e-discovery demands and IG.
That being said, who doesn’t enjoy looking ahead? Here are five trends that my colleagues and I will be following in the coming year:
1. Continued convergence of disciplines under the information governance umbrella
Both the legal and IT communities are increasingly aware of information governance (IG). Yet surveys reveal very few organizations have made any substantial progress enacting comprehensive IG programs. Analyst David Horrigan of the 451 Group attributes this to is a lack of alignment between IG and other related disciplines, such as e-discovery and records management. That disconnect results in IG plans that lack universal buy off or are so out of touch with realities on the ground that they are essentially unenforceable.
Organizations will continue to struggle with IG in the year ahead, but significant progress should also be expected. One important and positive sign is the emergence of e-discovery technologies that support IG priorities, such as defensible deletion of data. All the processes that fall under the IG umbrella, such as legal preservation, records disposition or archiving, are inexorably dependent on technology. As e-discovery and IG software systems become more multi-faceted and integrated, it will be that much easier for organizations to create comprehensive IG plans.
2. Greater adoption of pre-collection analytics technologies
A major e-discovery challenge for organizations is obtaining actionable intelligence about the potential scope and costs of a matter to aid in negotiations with an opposing party before any costs are incurred. The dilemma has become more pronounced in era of big data, where even a relatively straightforward matter can implicate terabytes of data without a precise narrowing of the ESI funnel early in the discovery process. Emerging analytics technology, like machine learning, can aid in quickly identifying and categorizing potentially relevant documents. However, existing "predictive" tools are typically applied after collection and processing costs have been incurred.
In 2014, expect to see the increasing adoption of pre-collection analytics tools, technologies capable of analyzing data at its source, prior to collection. Pre-collection analytics tools enable the more accurate scoping of potential data volumes and types to aid in proportionality arguments; they also help expose key pieces of evidence sooner to drive smarter case strategies earlier in the process.
3. Increasing discussion and debate over potential federal rule changes
No e-discovery prognostication would be complete without at least some mention of changes to the Federal Rules of Civil Procedure (FRCP). It seems every year there are rumblings of revisions. However, unlike past years when talk of potential rule changes was largely conjectural, the discussion in 2014 will have a decidedly more serious tone. Back in August, the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States submitted official proposed amendments addressing e-discovery, accepting public comments until mid-February. Among other things, the amendments look to clarify data preservation requirements, advance cooperation between parties and curb e-discovery sanctions.
It’s not very difficult to find backers of the rule changes. Many legal professionals feel changes will help drive more affordable and proportional e-discovery practices. However, don’t be surprised to hear a lot of push back in the coming year as well. Some prominent judges, including the "matriarch" of e-discovery, Judge Schira Scheindlin, have suggested that it’s premature to amend rules that were changed just eight years ago. Their reasoning is based on the notion that case law has and will continue to help clarify the many uncertainties that accompanied the 2006 FRCP changes. A change now might actually dampen that progress and open the door for a new set of problems.
An equally important consideration is the role technology plays. Advances in technology and adoption of better records management practices can help organizations address much of their e-discovery pains that the rule changes are attempting to rectify. Over-preservation, for instance, has as much or more to do with an organization’s continued reliance on antiquated systems and processes than anything set forth in the FRCP. That will remain the case regardless of any changes. The wheels may be in motion for rules changes, but that doesn't mean the debate will be silenced.
4. More attention on EU data privacy in light of proposed regulations
For US-based organizations with global operations, privacy statutes in the European Union (EU) have long been regarded as a mine field that greatly complicates e-discovery obligations involving data stored abroad. As if the situation isn’t already vexing enough, organizations are now facing the prospect of new, far more stringent EU data privacy regulations with potentially significant e-discovery implications. The EU’s governing body is currently debating the proposals, which, if a new law is passed next year, will go into effect in 2015. Twelve months goes by very quickly. As such, organizations involved in cross-border e-discovery need to plan ahead.
Though the specific rule changes are still being worked out, legal teams can expect to see far greater restrictions around moving data outside the EU. It will be critical to gain a better understanding of the organization’s data environment, specifically identifying where high-risk data is located so it can proactively (and compliantly) be managed when potential discovery issues surface. Organizations should also consider EU preservation and collection procedures that limit the exposure of an employee’s personal information. Cross-border e-discovery is a complex issue with no easy answers. It is also one that many organizations can ill afford to ignore, especially in the year ahead.
5. Growing embrace of big data technologies
Much has been made about the rise of big data and how it now permeates virtually every facet of our lives. Commercial entities, such as online retailers and search engines, have managed to leverage big data to their benefit, capturing huge volumes of data from customers and applying advanced analytics to detect patterns, opening the door for more targeted, effective marketing efforts. Even the federal government was exposed for its aggressive -- and covert -- embrace of the power of big data analytics.
The legal world has been slower to come around. Despite remarkable e-discovery technology advancements, many organizations still rely on reactive, highly manual approaches when responding to litigation. Expect to see big data technologies begin to infiltrate the e-discovery landscape over the coming year.
One term that figures to gain traction is "prescriptive analytics." Unlike predictive analytics, which help legal teams predict whether or not a document is relevant, prescriptive analytics apply advanced statistical models to suggest decision options to take advantage of the predictions, while also providing the potential implications of those decisions. The e-discovery use cases for prescriptive analytics are seemingly endless. Rather than waiting for litigation to commence before mining through data, legal teams could be proactively looking for telling patterns in existing data sets -- maybe the use of a particular set of keywords or phrases – and begin detecting potential sources of litigation before a lawsuit has even been filed.
Editor's Note: See what Ajith identified as trends for e-discovery in 2013.
Title image by Angela Waye (Shutterstock)