Advice from counsel: trends that will change e-discovery (and what to do about them now).

AuthorKaplan, Ari

EXECUTIVE SUMMARY

In the Fall of 2012, I interviewed thirty inside counsel to identify the most important trends that will transform e-discovery in the next decade, and to solicit their guidance on how to navigate this altered landscape. All of the respondents worked for Fortune 1000 companies and all had e-discovery responsibilities. Key themes in these interviews ranged from the promise of technology-assisted review to the impact of Big Data. Participants' insights focused on four key areas.

  1. Visions for E-Discovery 2015

    Almost all of the respondents expect e-discovery to be different in 2015. Participants characterized their views with the hope of growing judicial guidance tempered by the fear of an unprecedented pool of unmanageable data. (1) More than half cited predictive coding as the key technological shift that could alter the balance of reasonableness and proportionality in the coming years. (2) With the promise of broader information governance, lower cost solutions, and expedited litigation, many foresee greater efficiencies in e-discovery.

  2. Facing the Data Deluge

    Social media, cloud-based data storage, and a growing "bring your own device" (BYOD) work environment are creating a "big data" perfect storm. (3) This threat is beginning to overwhelm legal departments of all sizes. In-house counsel concerns range from identification and collection of disparate information to the cost and security of the entire e-discovery process. (4)

  3. Growing Partnership with Service Providers

    As e-discovery technology and processes evolve and grow more complex, counsel increasingly recognizes the value of experienced service provider partners. (5) While counsel maintains control of the process and the budget, service providers are proving their value--from predictive coding as a defensible service offering to project management and secure cloud-based software. (6)

  4. The Tipping Point for Spend Management

    This study reflects a dramatic rise in the number of in-house lawyers who can quantify their spending on e-discovery. (7) Though they often shared the numbers in ranges, most were generally more familiar with their organization's e-discovery spending than in the past few years. (8) There is also a movement to better calculate, track, and reduce spending, which may represent a tipping point in the cost-control challenge that continues to concern corporate law departments. (9)

    The full Advice from Counsel study summarizes these findings in greater depth. It also discusses other predictions and advice from leading in-house lawyers.

    INTRODUCTION

    The Advice from Counsel series reflects a universal understanding and a shared sense of responsibility for influencing the trajectory of e-discovery. This study summarizes the key areas of agreement associated with the changing digital landscape of modern litigation, as well as certain issues of contention, with the goal of providing a roadmap for piloting process enhancements and cost-effective technological improvements for in-house counsel. It is intended to provide readers with qualitative and anecdotal advice beyond the quantitative statistics included in many industry reports. The interviews with thirty leading in-house practitioners yielded a number of insights that are shared directly in their own words and help characterize the trends driving the e-discovery market.

    I personally interviewed thirty in-house legal professionals with responsibilities that included e-discovery. All participants were from Fortune 1000 corporations and spoke by telephone, under condition of anonymity, in October and November 2012. The results of this study reflect the second consecutive year of 100% corporate counsel participation, up from 72% in 2009 and 97% in 2010. (10)

    Of this year's participants, 90% select e-discovery tools and vendors for their organization; 83% implement e-discovery technology; 93% manage e-discovery tools and vendors; and 97% develop and implement e-discovery processes.

    The vast majority of participating organizations had total annual revenues greater than $10 billion and over 10,000 employees--70% and 86%, respectively. In terms of litigation events over the past twelve months, 37% reported managing more than 500 litigation events and 20% reported managing more than 2,000 litigation events.

    1. E-DISCOVERY SUCCESS IN 2015

      In many ways, 2012 was a watershed year for e-discovery--from high-profile court rulings on predictive coding, to ongoing market consolidation of providers and software vendors. (11) In this year's Advice from Counsel study, I asked e-discovery practitioners for their thoughts and educated guesses on the future of e-discovery. Where appropriate, I included data from previous years to compare and contrast changes in perception.

      According to 90% of respondents, e-discovery will be different in 2015. Seven key reasons emerged.

      1. "Predictive Coding Will Have a Dramatic Impact."

        Despite current adoption rates, predictive coding will be a key e-discovery tactic in 2015, according to 57% of respondents. This indicates that predictive coding is continuing to gain interest within the industry, considering that in the previous year's survey 55% of respondents said they were contemplating the use of predictive coding. Many respondents expressed optimism that predictive coding technology can better automate the review process and dramatically reduce costs.

        Quotes included: "People will get more comfortable with technology-assisted review"; "[p]redictive coding or some type of algorithmic/automatic document review should be more mainstream"; "[e]-discovery will just be more prominent and more sophisticated with the implementation and increased use of predictive coding"; "[t]here will be a growing push to fully automate review"; "[y]ou will see a rise in predictive coding primarily based on practicality and expense"; "[w]e are moving to predictive coding to reduce cost and improve efficiency"; "[t]hings like predictive coding will take an increasingly important role in e-discovery"; "[technology is evolving all of the time and predictive coding is the hot subject. That and other tools will become more mainstream."

        While expectations for predictive coding were high, many respondents noted that the technology is evolving quickly, requiring acceptance from the courts, new skills from e-discovery practitioners, and necessitating greater partnership with predictive coding service providers. (12) Ideally, corporations could conduct predictive coding in a defensible manner, reduce the costs of e-discovery while keeping internal control of the process, and rely on a service provider partner to constantly innovate on the technology. (13)

      2. "The More [Skills] They Can Bring to Bear, the Better They Will Be."

        Reflecting expectations that predictive coding will play a greater role in e-discovery, respondents broadened the list of skills helpful for future e-discovery practitioners. (14) While legal and technology aptitude remained high at 83% and 77% respectively, respondents also listed new, and perhaps surprising skills including statistics, accounting, project management, and linguistics. (15)

        While many acknowledged that there is no formal curriculum for this diverse skill set, one representative commented:

        You need to have a broad...

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