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Pausing to Reflect on the State of the e-Discovery Union in 2021

Scotti-Lynn Moore

As technology evolves, so does the state of e-discovery. Even transcending the growing pains of forced adaptation (I’m looking at you, COVID-19), there are bound to be challenges with new technologies popping up at incredible speeds, requiring everyone to keep up or get pushed out. During Relativity Fest 2021, we explored the changing landscape through the eyes of those with a finger on the legal pulse.

Under the direction of David Horrigan, Relativity’s discovery counsel and legal education director, an eight-member panel of industry experts—spanning judiciary, data privacy, employee staffing, and beyond—sat down to discuss the current state of the industry and the most notable factors affecting e-discovery last year. As you build your strategy for 2022, be sure to take a moment to reflect on what we learned in 2021.

The COVID-19 Effect

It's no secret that the pandemic has been a driving force of change and upheaval across all industries. Due to restrictions on where we work, how we work has drastically changed.

As an industry, the rapid adoption of technology has been quite beneficial—both for technological competence and legal access.

“I think the big takeaway from the pandemic has been getting lawyers conversant with technology...” said the Hon. James Francis IV, Neutral, JAMS, retired US Magistrate Judge. And by allowing remote access into courtrooms, “...it provides access to justice for folks who might otherwise be unable to get to court,” he continued. Sounds like a win-win.

Echoing similar sentiments, Zach Warren, editor-in-chief of Legaltech News, added that attorneys’ technical self-sufficiency has been on the rise. With a scattered workforce, attorneys have had to handle their own tech-related issues while IT departments handle higher-than-usual call volumes, creating an opportunity to elevate their knowledge of, and comfort with, technology. But more on that later.

So, continuing with Zoom proceedings will be the go forward, right? Not so fast. The Hon. Andrew Peck, senior counsel at DLA Piper and retired US Magistrate Judge, questioned whether proceedings will continue via Zoom after the pandemic is over and the CARES Act waiver lapses. Currently, there are special provisions in place—and while there are ongoing debates in the federal courts to determine the practicality of continuing with remote access, the future is still unknown.

From a business perspective, there’s been an increase in flexibility and demand for talent. As Debbie Reynolds, CEO and chief data privacy officer of Debbie Reynolds Consulting, noted, businesses have a much larger pool to choose from now that geography isn’t a factor. And it's a good thing too. According to Jared Coseglia, founder and CEO of TRU Staffing Partners, demand for talent is up, outweighing supply by as much as three to four times.

In addition, because candidates can be transported via Zoom in a matter of seconds and scheduling in-person meetings is no longer a constraint, hiring speeds have jumped into overdrive.

But with convenience comes a cost. According to Maribel Rivera, ACEDS senior director, without 1–2 hour commutes, professionals work longer hours on average—making the already challenging task of maintaining work/life balance even harder.

The State of Technological Competency: Who’s Winning?

Speaking of technology, have attorneys dethroned litigation support specialists with enough tech-savvy prowess to lead the charge in innovation? The results are in, and the short answer is no—but it has gotten better.

While most of the panel agreed on this point, the manner and degree of improvement was debatable.

“In many ways the bar was lowered [in 2020],” said Ari Kaplan, principal of Ari Kaplan Advisors. With the novelty of working from home, it wasn’t outside the norm to give people a pass. But as we continue in this operational state, businesses have increased their technology budgets to integrate fresh solutions, and that means expectations have shifted. “Now [that] there are so many different tools, and navigating them has become a challenge, people realize there’s more to it than simply clicking on Zoom or, you know, unmuting yourself, and the expectation has grown. In fact, that expectation is going to increase,” said Ari.

Jared Coseglia offered a different take. Based on what he’s seen in staffing, practicing attorneys aren’t really expected to be as well-versed in the technology as other staff, but are better able to “wield the talent that wields the technology for them.” As a result, attorneys have been more involved in the talent hiring process because they are better equipped to evaluate candidates’ technical capabilities.

While most of the panel agreed, some weren’t so sure. As businesses have undergone a “digital transformation,” Debbie Reynolds explained that technological diversity has increased the number of file types and storage locations in an organization’s data universe—and that files may not be on a computer, but in the cloud.

“I think the diversity and the uniqueness of the way the data is being captured and created now is creating a new barrier,” Debbie said. As we continue in a virtual world, new technologies will continue to pop up, and quickly make today's technology antiquated.

The Judges Weigh In: The Year’s Most Influential e-Discovery Cases

With cases spanning multiple time zones to sanctions exemplifying the importance of technologic competency, the judges give their thoughts on few standout cases that made headlines this year.

#1: DR Distributor and the 256-page sanction.

While this sanction is known for its incredible length, Judge Francis IV outlined why it wasn’t anything new: making misrepresentations to the court, failure to issue a proper litigation hold, and failure to place the hold on all relevant data sources (including cloud and local). Consider this Exhibit A on how valuable technological competence can be.

#2: Island LLC Trademark case vs. the time zones.

Sometimes, leniency might be the best policy. In a more dispersed working environment, deadlines and time zones can be tricky to navigate if not explicitly defined. Judge Francis  ’s approach? Send them the Sedona Cooperation Proclamation along with Rule 1. And as Judge Peck labeled it, due to its non-serious nature, fighting over this kind of detail can be an example of “gamesmanship” on the part of opposing counsel.

#3: In re Valsartan and the use of technology-assisted review.

Even with newer technologies becoming the norm in data review, it's difficult to determine the best strategy if you don’t know what data you have to work with. Judge Francis explained how establishing agreed-upon TAR protocols ahead of time can be challenging and not always practical. The data itself can dictate the best extraction tool, but you may have to dive in first. Similarly, Judge Peck believed the struggle lies in concerns over validations and agrees that transparency continues to be a critical factor.

State of Data Privacy and Protection

Knowing where your data lives is critical. With the EU General Data Protection Regulation (GDPR) in effect, it can be challenging to maintain compliance with data governance rules if … you don’t know where it is. According to Ines Rubio, senior director of technology, specializing in information governance and privacy, at FTI Consulting, “the nature of businesses across the globe has just put into perspective the importance of understanding where your organization’s data is, and how [it travels].” She also said that one of the most important things anyone can do to protect data is to ask questions.

Stateside, we’ve seen some states stepping up their data protection laws. According to Debbie, “probably the most important domestic development is all these states now are creating these different privacy laws.” Additionally, even select cities across the US have implemented laws to protect specific types of data privacy, such as biometrics.

State of Inclusion and Diversity

With the evolving social climate pushing for a greater focus on diversity and inclusion, just how far has the legal industry come as a whole? According to Maribel Rivera, we’ve made some strides but we’re not quite there.

“I would say we’ve done a better job; we’re hiring a lot more people of color, and women, and LGBTQ, and individuals with disabilities—but not in the senior leadership realm.”

On a positive note, many organizations have made strides in investing in their employees’ development via mentorship programs, attorney development, and e-discovery and financial education.

Takeaways

With so much insight, let’s review the takeaways from 2021:

  1. Pandemic or no pandemic, technology is here to stay.
  2. Part of data privacy and protection is knowing where the data lives as well as where it goes.
  3. Keep striving for advancement—technologically and in social change.

So, there you have it—straight from the experts. As COVID continues to catalyze change in our daily lives, we must adapt with it. Luckily, change can be good. There’s never been a more exciting time in e-discovery, and it will be interesting to see how the landscape continues to evolve this upcoming year.

2021 Data Discovery Legal Year in Review

Scotti-Lynn Moore is a member of the instructional design team at Relativity, focused on creating educational content and delivering e-learning materials for Relativity users.