The e-discovery market continued its maturation in 2014, with last year’s hot trends like predictive coding and early case assessment becoming more mainstream and new initiatives around information governance, big data and BYOD/social media emerging as important issues. Electronic information disciplines, such as records management, cyber security and corporate compliance, continued to become more intertwined in the e-discovery process, and the group of stakeholders touching e-discovery has begun to transform its focus into the broader Information Governance (IG) spectrum.
But the transformation remains challenging. Many organizations are only just beginning to treat e-discovery as a standard business process that can be leveraged in larger IG practices.
As legal standards, rules and case law that govern e-discovery requirements remain fluid, the technology that supports these and growing information governance requirements continues to see innovation across the board. So how will these innovations impact the year ahead?
Organizations Will Move from Talking about Information Governance (IG) to Taking Action
During the past year, the “talk” around IG increased significantly. While we still don’t have a unified definition of IG, we have seen a number of analyst firms and industry groups, such as Gartner, The Sedona Conference and the Information Governance Initiative, release similarly worded -- though distinct -- definitions. Furthermore, many have cited the need for a “Chief Information Governance Officer” or “Chief Data Officer” within the executive ranks to oversee the IG function.
And while some organizations have started down the path toward implementing an IG framework, very few have made any significant progress. The increased conversations around IG in 2014 will translate to real action in 2015. Serious investments will begin in IG. However, given the scale of the problem that has built up over time, organizations will avoid “boil-the-ocean” scenarios and focus on piloting projects, testing processes and refining technology to ensure bigger initiatives succeed.
Consulting and services firms will lead the way, sharing their expertise of how to align the appropriate level of process and technology with the right stakeholders across the enterprise. One of the key “leave-behinds” of these projects will be well-structured workflows that cover the creation, management and disposition of data. To get the job done, consultants will leverage the technologies and disciplines of e-discovery by applying them to IG activities, such as file analysis, defensible deletion and data mapping.
In-House Legal Departments Will Adopt Business Process Optimization Principles
Litigation costs continued to rise in 2014, and it’s become apparent that preservation and review costs for electronically stored information (ESI) are becoming intolerable. This is not a phenomenon confined to “regular e-discovery.” Government investigations demand a whole new level of skill in ESI production, and special cases involving mobile devices and cloud storage have exacerbated the challenges and costs involved in preparing for litigation.
As a result, we’ve seen an increase in the number of organizations who are bringing all or part of the e-discovery process in house as a way to cut costs. And as they do so, executive management is demanding more visibility and predictability into their operations. E-Discovery will cease to be a disjointed effort spread across various functions in legal and IT. Instead, it will be treated as a business process --one that can be measured, managed and optimized. While the legal department may never be able to accurately predict the costs of litigation yet to be filed, it will take advantage of technologies and processes to significantly reduce the time and money required to defend and represent the organization.
FRCP E-Discovery Amendments will Hit Unexpected Roadblocks
Don’t be surprised if the amendments to the Federal Rules of Civil Procedure (FRCP) come under greater scrutiny in 2015. The two final hurdles before ratification may be the toughest ones to pass, those being the United States Supreme Court and the United States Congress. While a majority of judges and e-discovery experts think passing through multiple committees (Advisory Committee, Standing Committee and Judicial Conference) in 2014 was the biggest challenge, others tend to disagree.
Notably, the American College of Trial Lawyers and the NAACP Legal Defense and Educational Fund don’t agree with these amendments. The American College of Trial Lawyers claim that the e-discovery amendments would cause numerous deserving cases not be tried based on costs (Champagne, 2013). On that same note, the NAACP Legal Defense and Educational Fund is concerned that plaintiffs with civil rights claims will not be able to prove their case because proportionality rules would prevent defendants who hold the information from producing it (Champagne, 2013).
Again, don’t be surprised as the ratification of these amendments gets closer more and more groups surface and voice their displeasure of these amendments.
A 7-Figure Spoliation Charge will be Issued Due to a Social Media Blunder
A trend that can’t be overlooked in 2015 is the growing role social media is playing in the business world. Once viewed as strictly personal in scope, social platforms like Twitter, Facebook and LinkedIn are increasingly used by businesses to engage customers, market products or extend services. Whether officially sanctioned by IT or not, social business applications also facilitate communication among employees, suppliers and contractors and have gone mainstream in externally-focused parts of the organization.
Companies are reaping the benefits of social media to be sure. But as these platforms supplement or supplant more conventional forms of electronic communication, such as email, we are seeing a dramatic uptick in the need to incorporate social media in e-discovery. We’ve already seen several cases in recent years that hinged on social media evidence and a few sanctions issued on social media blunders.
While we haven’t yet seen that one landmark social media decision accompanied by a highly punitive adverse inference instruction or seven-figure penalty against a large corporation, we believe 2015 will be that year. Expect a scramble to ensue as organizations try to adapt to heightened awareness of their e-discovery obligations in this area. Courts will have little patience for organizations that plead ignorance after neglecting their social media discovery obligations or, worse, think they can get away with willfully deleting certain information before it can be brought into evidence.
Corporate Data in Public Cloud Will Pass 10 Percent Threshold
Until recently, only small and medium-sized business (SMB) had significant portions of their corporate IT infrastructure and data stored in the cloud. No longer. Organizations have begun a big push to procure applications only in the cloud. They have re-examined their IT efforts and determined that internally hosting and administering email, collaboration suites, HR, enterprise resource planning (ERP) and other applications is not strategic.
In 2015, enough Global 500 organizations will join their SMB brethren in adopting solutions, such as Office 365, Gmail, Salesforce, Workday and Box, to take the overall percentage of corporate data in the cloud beyond the 10 percent threshold. This isn’t really a stretch prediction, though. Cisco has publicly estimated that by 2018 24 percent of corporate data will be in the public cloud, and the cloud data growth rate will be 50 percent higher than the on-premises rate.
With all this rush to the cloud, however, very little attention has been paid to the IG and e-discovery implications. In 2015, we will see corporate clients scramble to preserve and collect data from a myriad of cloud-based applications. This won’t always be pretty, given the constraints on cloud supplier functionality and bandwidth. And cross-compiling the collected data from these cloud silos will add to frustrations. These issues won’t seriously dent the cloud outsourcing growth trend, but it will focus minds and development activities on efforts to plan ahead and close the gaps.