Five Encouraging E-Discovery Themes from 2012

Created on December 27, 2012

It's easy to dwell on the negatives with e-discovery. Most lawyers will agree that e-discovery is a rather thankless activity fraught with tight deadlines, tedious projects, and the necessary juggling of multiple tasks at once. For that reason, we thought it appropriate to relay some of the encouraging e-discovery developments from 2012. E-Discovery may never be an enjoyable walk in the park, but we feel the following trends at least show that things are moving in the right direction:

1. E-Discovery Education: Knowledge is power in e-discovery. The lack of understanding around basic e-discovery principles, even among experienced lawyers, is truly remarkable. Fortunately, those who do want to learn about e-discovery – everything from the latest case rulings to the newest e-discovery technologies – have plenty of resources at their disposal. Whether through blogs, articles, educational webcasts or conferences, there are countless e-discovery experts who have dedicated themselves to improving e-discovery knowledge throughout the legal community.

2. Expanded Adoption of E-Discovery Rules: To the frustration of lawyers throughout the country, many state and district courts have yet to account for modern e-discovery challenges in their official rules and guidelines. However, 2012 saw both the Florida state courts and the U.S. District Court for the Northern District of California adopt new guidelines for e-discovery. The guidelines are designed to ensure that e-discovery practices are keeping pace with the rapidly evolving nature of ESI and technology and that the legal framework surrounding e-discovery strikes the appropriate balance between being prescriptive, yet reasonably flexible. Here's hoping more courts see the value of specific e-discovery guidelines in 2013.

3. Judicial Endorsement of Predictive Technologies: While many e-discovery experts have been beating the “predictive" drum for some time, there was much apprehension going into 2012 surrounding how the courts might respond to this emerging technology. Fortunately, several rulings emerged - including Da Silva Moore, In Re: Actos and Global Aerospace Inc.- that confirmed that judges are largely on board with the move towards computer-assisted methods to help reduce e-discovery costs. With the courts now endorsing predictive, expect 2013 to see a growing number of organizations look to invest in these promising new technologies.

4. Convergence of Information Governance and E-Discovery: Though e-discovery is usually discussed in the context of litigation, its impacts can be felt in many areas throughout an organization. One of the positive trends of 2012 was an increased acceptance that e-discovery requirements must be carefully coordinated with larger information governance initiatives. By taking a proactive, comprehensive approach to how ESI is managed throughout the enterprise, organizations are beginning to reap the benefits of being able to respond to document production requests much more quickly and efficiently, while also reducing legal risks and costs.

5. Emergence of E-Discovery Project Management: Though many lawyers have resisted the notion, e-discovery is best supported by basic project management principles. As we've reported previously on the blog, failing to implement a consistent process around e-discovery is a common cause for mistakes – and sanctions. It would seem that the past year saw more legal teams accept this reality and begin looking at e-discovery as a repeatable business process. By shedding the reactive, “fire drill" e-discovery approach, organizations can develop repeatable processes and workflows and greatly improve efficiency.