By Tim Rollins
E-Discovery, as an industry, is once again at an inflection point. For an industry that is only about 15 years old, it certainly has had a turbulent ride. While throughout the 1990s, more and more relevant information was being produced and maintained in electronic format, it wasn’t until 2003 that the obligation for organizations to preserve (and produce) relevant electronically stored information (ESI) was announced with a thunderclap in the form of the Zubulake rulings.
Since then, we’ve seen changes in technology (from specialized point tools to broad e-discovery platforms); processes (from fragmented, multi-party, and reactive to proactive); and people (from highly technical specialists to members of in-house legal teams). And the changes keep on coming. In a recent webcast on the State of E-Discovery 2019, Exterro Managing Director of Client Operations Nishad Shevde and Senior Director at FTI Technology Deana Uhl, looked back at what’s happened in e-discovery in the past year, and more importantly, at the forces shaping the e-discovery industry today.
In their wide-ranging conversation, they identified four big trends that will continue to exert pressure on e-discovery professionals in the immediate future.
Rising demands on in-house legal teams
Uhl explains, “The demands on in-house legal teams are continuing to rise. This is due to a variety of factors including the increase in disputes, especially class action lawsuits; pressure to control costs and reduce budgets; and the evolution in the regulatory landscape.” These forces aren’t necessarily new. We live in a litigious society, businesses always demand efficiency, and laws change to meet the needs of citizens in an ever-changing world.
But in the case of legal departments, they’re finding ways to cope. They’re using technology to take better control of the e-discovery process, but also embracing a legal operations mindset to increase efficiency, both in terms of timelines and budgets. Additionally, the rise of alternative legal service providers (ALSPs) has given in-house teams access to specialized legal professionals at lower cost than working through traditional law firms.
Accelerating technology change
Since its inception, e-discovery has been inextricably tied to technology—both the tools that it requires to happen and the broad range of technologies it must interface with to get to the facts of a given matter. In terms of the tools in use, the evolution towards unified e-discovery platforms and user-friendly interfaces has turned e-discovery from the domain of technicians into something a legal professional can accomplish.
In terms of data sources, the acceleration of technology can put organizations in an ongoing game of “catch-up.” In that circumstance, the lure of big players like Microsoft offering solutions can be strong, but ultimately, e-discovery professionals must recognize that there’s no simple substitute to staying abreast of change. As Shevde explains, “There’s also significant risk. For non-legal users who purchase Office 365, there’s added risk from the ‘rogue application’ that is not within the technology suite.”
At the end of the day, Uhl offers sound advice, “Technology is not the end-all be-all. It’s just a tool to support the overarching process.”
Evolving e-discovery case law
The 2006 and 2015 sets of amendments to the Federal Rules of Civil Procedure stand as key markers defining the obligations of e-discovery professionals. However, those professionals understand that ongoing case law does as much (if not more) to define the actual practice of e-discovery. Those rulings continue on, day to day, month to month, and year to year, slowly refining our understanding of what’s truly required of an e-discovery professional.
Recent case law has influenced e-discovery in four key areas:
- Proportionality: Courts are looking closely at proportionality factors to determine the appropriate scope for cases as they move away from “discovery about discovery.”
- Preservation and spoliation: Courts are starting to focus on the spirit of FRCP 37(e) and looking for curative measures rather than punitive sanctions.
- Cooperation: Courts are demanding good faith negotiations between opposing parties to reach agreements on the scope of the discovery process.
- Cross-border discover: GDPR (and other privacy regulations) have big implications for organizations’ discovery processes, as they have to balance potential conflicts arising from how they can use individuals’ data.
The intersection of e-discovery with other regulatory regimes
The implementation of the EU’s General Data Protection Regulation (GDPR), as well as the passage of the California Consumer Protection Act (CCPA), are just the leading edge of a trend that will surely have a big impact on the e-discovery industry. After all, many more states are considering changes in data privacy regulations, and legislation has even been introduced in the US Senate. (Of course, it’s likely to go nowhere at this point in time.)
Shevde explains that this will have multiple impacts on e-discovery professionals. On a professional level, the changes may open up new opportunities for career development. But at a technology and process level, he says, “There’s also a natural intersection around preservation and the obligations under these acts to move, destroy, or disclose data that may contain private information. It’s critical for organizations to have a clear understanding of not only their data landscape, but also their preservation obligations for active litigation, or they could potentially get themselves in trouble in two directions: either by failing to properly preserve data need for litigation or not being able to respond properly to an individual requesting data.”
These trends are coming together to create e-discovery teams that do more for their organizations than ever before, by relying on improving e-discovery technologies and processes. Find out more about these trends—and the other ones shaping e-discovery today—in Exterro’s and FTI Consulting’s State of E-Discovery 2019 report.