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Why E-Discovery Still Hasn’t Changed that Much in 5 years

Created on November 3, 2017

Vice President, E-Discovery

The continued explosion of data! Additional, new and scary data types! New FRCP e-discovery amendments! You would think with all these new revelations e-discovery would have changed a lot in the past 5 years, right?

One would think so, but it seems like from a macro point of view, everything on the surface looks quite similar. How do I know this? Well, let’s look back at 5 e-discovery trends we recognized from 2012 and if they still apply today.

Take a look and let me know if you don’t think all of these 5 true still ring true:

Trend #1: E-Discovery Education

2012 Look Back: “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 blogsarticleseducational webcasts or conferences, there are countless e-discovery experts who have dedicated themselves to improving e-discovery knowledge throughout the legal community.”

2017 Reality: While there is a bigger niche in the legal community that knows more about e-discovery, in reality legal professionals as a whole are still pretty oblivious. For example, at one of the biggest in-house legal conferences in the US, 2017 ACC Annual Meeting, only one session even referenced the word e-discovery. Albeit, the number of e-discovery educational resources continues to grow, which includes more conferences, more blogs and a bigger focal point on e-discovery related news events in the media.

Trend #2: Expanded Adoption of E-Discovery Rules

2012 Look Back: “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.”

2017 Reality: According to e-discoverylaw.com, all 50 states have adopted some rules that address e-discovery issues specifically. Even with this adoption of e-discovery centric rules we are still waiting to see if judges across the country who constricted by heavy dockets and a limited amount of resources will learn and enforce these new e-discovery rules appropriately.

Trend #3: Judicial Endorsement of Predictive Technologies

2012 Look Back: “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 MooreIn 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.”

2017 Reality: Judges are still beating that “predictive” drum and it seems like they will need to keep on playing those bongos for a while. While there have been new decisions like Rio Tinto PLC v. Vale S.A. (S.D.N.Y. 2015) and In Re Biomet M2a Magnum Hip Implant Products Liability Litigation (N.D. Ind. 2013), which have helped clarified the use of predictive coding technologies, as whole the legal community isn’t universally using predictive coding for review.

Trend #4: Convergence of Information Governance and E-Discovery

2012 Look Back: “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.”

2017 Reality: We are still converging. Information governance has received much more attention over the past year or two with the numerous high-profile data breaches which have plagued major businesses like Equifax, Target, etc. The problem is, information governance as it applies to e-discovery is continuing to make progress. With the new FRCP rules emphasis on proportionality, legal departments are making a concerted effort to move away from the “preserve/collect everything” strategy and employ techniques like tiering e-discovery activities to reduce legal spend.

Trend #5: Emergence of E-Discovery Project Management

2012 Look Back: “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.”

2017 Reality: Project management for the e-discovery is continuing to catch steam but for the legal community as a whole, there is still work to be done. Mature legal departments have started leveraging legal project management software to help organize and coordinate activities. According to the EDRM Duke Law, BDO and Exterro 2017 In-House Benchmarking report, in the next two years there is expected to be a 13% increase in the use of legal project management technology, while an 8% drop in use of spreadsheets and email. By incorporating legal project management technology, legal departments will be empowered to easily track important metrics like total matter cost for accurate budgeting and cost containment.

If you’re interested in seeing the complete results to 2017 In-House Benchmarking report, sign up and we will send you a copy of the report when it’s released on November 3.