Editor's Note: A clipped version of this article originally appeared on the BSI Cyber Exchange website.
In a field as fast-paced as e-discovery, it’s easy to see all the ways our day-to-day tasks have evolved over the years. New and changing data sources, developing technologies, and evolving case law necessitates this evolution. But often, we’re so busy juggling this evolving work that we lose sight of the forest for the trees.
So how hasn’t e-discovery changed since its appearance in the legal landscape years ago? And even more important than these changes (or unchanges), how should we be trying to evolve e-discovery to prepare ourselves for tomorrow? Let’s take a look.
5 Ways e-Discovery Has Changed
#1: Adoption of cloud services.
A McAfee study showed that 93 percent of organisations utilise cloud services in some form. The use of cloud technology has steadily increased and has yielded cost reductions, especially as organisations consolidate their cloud services. These services provide added benefits like centralised and regulated security procedures, the elimination of worry over infrastructure upgrades for the user, and increased flexibility to scale up or down as needed.
RelativityOne, for example, utilises all these features, with other benefits that include: always being on the latest version of the software, ensuring data is encrypted at rest and in transit, and flexibility of scale and applications to meet each organisation’s individual e-discovery (and beyond) needs.
#2: New and ever weirder data collection requirements.
e-Discovery is still primarily made up of email and electronic documents, and projects can still involve hard copy documents, which require optical character recognition (OCR). Over time, additional data types to hit the market have included voice, video, and short messaging (for example: Skype, Slack, and SMS data). More recently, data has been collected from devices within the Internet of Things, including data from smart home devices such as Amazon’s Alexa devices or Google Home.
Moreover, there is now the growing need to collect data that is in flux—including from websites and social media pages that are ever-changing.
Where to next, especially as wearable technology becomes more available and the potential growth of bioengineering becomes more plausible? Will we need a way to place a hold on data loss from these augmented technologies to help fight that next big case?
#3: Bringing the e-discovery process in-house.
Law firms and corporations, at one time, almost always outsourced any services they deemed as being within the province of IT—a designation earned by the technical complexity of e-discovery. More and more, though, as technology becomes easier to use and more important across business practices, organisations are bringing these functions in-house.
In addition, with cloud services, it is much easier to focus on the day-to-day of the business—as well as close management of critical matters—and leave the infrastructure, updates, and patching to the cloud provider. That means more corporate legal teams are learning to do more with less and rely on their own talent as much as their service providers’.
#4: Better and more accepted use of analytics and technology-assisted review (TAR).
Especially considering that e-discovery is the most expensive component of modern litigation, investigators, lawyers, and litigation teams have always been interested in ways of reducing the amount of time and money spent reviewing documents. Traditionally, this has been achieved via limiting date ranges, prioritising custodians, and using keyword searches, to name a few options. But these tactics are no longer enough to keep costs proportional and timelines achievable.
Many organizations are turning to analytics, TAR (including active learning), and other more modern tools to close the gap and make e-discovery more efficient.
As data volumes and complexity continue to exponentially increase, even the courts are now directing these teams to utilise data analytics to help reduce the volume of reviewable data.
#5: Emerging data vulnerabilities of ESI and the necessity of robust security practices.
Electronically stored information (ESI) can take the form of social media, audio files, instant messages, photographs, Word documents, spreadsheets, PDFs, emails—the list of file types goes on and on.
For many the most ubiquitous form of communication within and between organisations is email. An organisation will know where their email is normally stored; for example, if they run on-premises Outlook it will be on an Exchange server. However, depending on settings, employees may keep local copies of files, downloading attachments and saving emails locally. When it comes to some of the other file types, the organisation may have lost control of what their staff use and therefore where it is stored.
As a result, strong information governance practices are key—and so are a strong security policy and culture for employees, to ensure this proliferating data isn’t compromised (even inadvertently) by less-than-ideal habits.
3 Ways e-Discovery Hasn’t Changed
#1: The EDRM.
The Electronic Discovery Reference Model was first conceived in 2005 to provide a standardised set of guidelines for the e-discovery industry. The model remained largely unchanged until 2014, when they added requirements for information governance. This was a direct result of the ballooning volumes of data organisations were accumulating, and the tendency of the industry to request information from the year so-and-so, regardless of whether it was necessarily relevant to the current litigation requirement.
Although there are organisations that are still learning the information governance rule the hard way, in general, the industry has accepted these guidelines. Best practices based on the EDRM have been the norm for any e-discovery case for quite some time.
#2: The importance of a project manager.
A good project manager (or litigation support professional) cannot be underestimated. Partners, lawyers, clients, investigative teams, and paralegals will understand the particulars of the case and how to review the documents. They will not want to babysit the processes of collecting, processing, managing the review, running productions, and, finally, preparing for presentation to the courts or regulators the supporting documents to the case.
The best project managers are calm under pressure, proactive, great communicators, and problem solvers. They will not be fazed when data processing sizes are doubled, when stakeholders request reporting on the review progress, or when the review deadline is pushed while the production deadline remains the same.
A skilled, level-headed project manager has always been the key to achieving as smooth a project as possible.
#3: Finding the elusive “smoking gun.”
The “smoking gun” is that elusive piece of circumstantial evidence that, short of catching someone in the act, will prove your case. It is not often that this theoretical document exists in an e-discovery case, but its allure hasn’t changed among litigation teams.
When searching through the megabytes, gigabytes, or even terabytes of data, this is what a team is hoping to find. The growing acceptance of utilising analytics and technology-assisted review (TAR) is now making it at least easier to sift the mountains of documents. Case teams however, still rely heavily on traditional review methods including keyword searches.
1 Way e-Discovery Should Change
Legal professionals must become more competent in e-discovery.
In recent years there have been several well-known brands put under a great deal of scrutiny and regulation. Consequently, many organisations are implementing some form of e-discovery solution. With these implementations comes the need for assistance from appropriately trained professionals.
The e-discovery industry is still evolving and, although we have well-established standards for how to run an e-discovery project, the same care and thought has not been given to formal education programs in electronic discovery. Often those in the e-discovery industry have fallen into it, and those lawyers who have any e-discovery knowledge have either actively pursued the area or been dropped onto a case that requires it and had to learn very quickly.
Additionally, the type of training required for a lawyer is very different to that of a litigation support or project manager on an e-discovery case. They don’t need to know the detail of how to use every e-discovery tool out there, but should understand:
- The limitations of said technologies.
- What data types are available and therefore could have a bearing on their case.
- What effect these data types may have on the turnaround time.
- Practical ideas and solutions on some of the many challenges faced by the e-discovery industry.
- The effect of adaptive and emerging technologies.
Perhaps more importantly, attorneys involved in e-discovery projects should also understand some of the mistakes that have been made in past cases—and how these can be avoided.
On-the-job training can certainly help support these knowledge areas but adding this information to course offerings and CLE opportunities will help more lawyers hit the ground running and provide better service to their clients from the start.