Your single source for new lessons on legal technology, e-discovery, and the people innovating behind the scenes.

The Top Trends Dominating e-Disclosure in 2023

David Horrigan

As the new year unfurls, the legal landscape sits within the crosshairs of a major inflection point. The data explosion gained greater traction throughout 2022, with 333.2 billion emails sent daily and 90 percent of the world’s data created in the last two years alone. Law firms and corporate legal departments have to handle an unfathomable amount of data, hailing from an ever-growing array of data sources in the form of emails, short messaging such as Bloomberg, Skype, and Slack, emoji exchanges and more.

The pandemic remains the one of the most significant factors in the radical upsurge of technological adoption, driving thousands of industries online and adeptly digitising the very nature of interpersonal communication as we know it.

In this article, we’ll dig deeper into the cornerstone trends set to dominate the e-disclosure landscape in 2023 and the impact that will inevitably permeate daily practice.

Trend #1: e-Discovery Continues to Incorporate AI into More Parts of the Process

The data detonation bombarding legal teams around the globe has necessitated AI to take on a more central role. It is humanly impossible to parse through millions of complex e-discovery documents with the same degree of accuracy, speed, and efficiency as AI. Allocating tedious, time-consuming administrative tasks to advanced technologies streamlines the efficiency of a legal department and empowers individuals to focus on more high-value pursuits, such as prospecting new business and nourishing client relationships.

As the threat of a global recession looms, legal teams need to think strategically about how to remain buoyant amongst budget cuts. Harnessing AI-derived methodologies means laws firms and in-house counsel are not consumed by expensive manual tasks and can utilise internal resources more effectively. To keep costs low and workloads manageable, lawyers can leverage sophisticated AI capabilities such as keyword mining or sifting through millions of pages to find a single line of evidence to keep pace with snowballing data volumes.

Engorged unstructured datasets pose great organisational challenges and dispersed data sets scattered across several platforms can cause latency in the time-sensitive e-disclosure process. AI is able to recurrently analyse, structure, and categorise litigation documents, letters of negotiation, jury verdicts, past e-disclosure assets and more in a singular platform. A streamlined tech-stack enhances the functionality of a law firm and cuts costs in removing the need for investment in multiple storage systems. AI consolidates information to support legal teams quickly and easily in surfacing critical evidentiary insights and removes the pressure attached to meeting deadlines.

Increasing data volumes further compound associated data privacy and data protection concerns. AI can help reduce the risk of sensitive e-disclosure data being leaked or mishandled, as fewer individuals need to interact with it.

AI is changing the way legal professionals manage e-disclosure even before the review stage. Technology-assisted review, data analytics, and overall deeper algorithms streamline the operational e-disclosure process and allow legal teams to work more cost effectively and efficiently. As a result, advanced technologies are playing an active role in helping inform and strengthen legal strategy at every stage of the e-disclosure process.

Trend #2: Workflow Automation Consistently Improves Human Practice

Most global economists are resigned to the inevitability of a worldwide recession in 2023. The predicted timing and degree of severity vary, but the prospect of law firms and corporations facing recessionary headwinds this year is regarded by many as a matter of certainty.

Interest rates have spiked, inflation levels have soared, and consumer demand has plummeted. After two years of breakneck-speed hiring, the job market is cooling. Stocks were down 20 percent in 2022 with experts predicting gloomily that they’re likely to keep falling.

The World Bank slashed its 2023 global economic growth outlook to 1.7 percent from its earlier projection of 3 percent, citing China as a key variable and the Russian invasion of Ukraine as a major factor. Of course, the echoing aftermath of the pandemic is another factor encumbering economic progress.

Recessions are daunting, but they are cyclical in nature and don’t last forever. There are also key steps that law firms and in-house counsel can take to prepare for inbound financial downturns that not only allow them to survive a recession but thrive under trying circumstances.

Investment in advanced technology is unequivocally the first thing legal departments should look at implementing ahead of economic turbulence. As budgets tighten, legal teams will be forced to do more with less to increase efficiency and avoid a dip in the quality of outcomes. Reliance on AI models is essential to scale work output, automate time-consuming tasks, and weed out irrelevant data.

Automated workflows decrease administrative overhead by ensuring businesses and law firms run more efficiently by automating manual tasks and reducing time spent waiting for processes to complete. This gives legal professionals the freedom to spend more time on activities that move the business forward, instead of monitoring software or becoming bogged down in laborious administrative work. In essence, to use the popular expression, these automated workflows are enabling legal professionals to practice at the top of their licenses.

By minimising the human effort required for tedious but critical activities, such as updating indices or processing documents, legal departments can have greater confidence that their data is accurate, and errors are minimal. Additionally, lawyers can start reviewing the most important documents in a case faster when AI runs structured analytics to immediately surface the most prudent pieces of evidence at the preliminary stages of e-disclosure.

Trend #3: ECA is Truly Transforming into EDA

Early case assessment (ECA) is an age-old legal practice that’s been kicked around for decades. However, a term from a bygone era, early data assessment (EDA), may better reflect the length and breadth of the legal landscape—and for good reason. Sometimes the terms can be used interchangeably, but there is a distinctive difference between the two.  

Gaining an understanding of the key facts within a large data set can be one of the biggest obstacles in an investigation. Early case assessment is the conventional process of evaluating the strengths and weakness of a case before a significant degree of time, effort, and expenditure is invested. ECA is an informed calculation weighing up whether pursuing litigation is likely to result in a win for clients and worth the predicted expenses.

ECA is designed to provide legal teams with a birds-eye-view of all electronically stored information (ESI) and synthesise evidence into a preliminary understanding of the document corpus. The process is intended to holistically assess the level of risk, generally define next steps, and reduce costs where possible.

However, legal teams need to get into the habit of assessing all of the data that comes into the process of litigation. This is where early data assessment comes in and transcends simply assessing the strength or weakness of a case. EDA digs deeper into what the data actually looks like before legal teams even begin to process it. EDA is a vital part of an organisation’s information governance program.

Employing EDA to handle a data population at the elementary stages of e-disclosure means the golden nuggets of evidence are sieved out of the digital dead weight to provide lawyers with a clear-cut understanding of their strategic vantagepoint. Advanced e-discovery techniques include filtering and culling data, de-duplication of files, sophisticated keyword searches, detection of key themes and sentiment analysis.

Potentially relevant documents that hit on selected keywords are bought to the surface, which markedly reduces the volume of ESI to parse through. Having all details related to a very specific data set from the outset dramatically streamlines the e-disclosure process and saves on unnecessary costs. 

The benefits of conducting EDA result in notably reducing the amount of time and expenses sunk into e-disclosure and ensuring legal teams are well positioned to make an informed call on the most appropriate course of action early on.

Technologically savvy legal teams understand that advanced AI can conduct the heavy lifting of EDA automatically. This is particularly pertinent for corporate law departments, which are increasingly expected to forecast and adhere to budgets, despite the unpredictability of litigation.

Trend #4: Cloud-based Technologies Continue to Accelerate and Prove Their Value

Cloud migration isn’t a new concept, and relocation from or augmenting on-premises platforms has been growing gradually in popularity with each passing year. Then the pandemic came along and slammed the accelerator button with such force that it turbocharged the rate of cloud adoption to unprecedented levels. Gartner now predicts that by 2025, 50 percent of all on-premises IT solutions will be replaced by the cloud.

SaaS and cloud solutions are establishing dominance across every vertical. The legal world is one shining example of an industry who has embraced the cloud with open arms and is reaping the many benefits. As far as e-disclosure goes, law firms and corporate in-house counsel are capitalising on an abundance of cloud-only advantages, including greater security, speed, scalability, and cost-reductions. Cloud storage has metamorphosed so rapidly into omnipresence, that far-reaching regional and multinational regulations have gone global.

The Data Access Agreement, which in October 2022 implemented the US Clarifying Lawful Overseas Use of Data (CLOUD) Act, solidified a partnership between the United States and the United Kingdom, bringing into force a cross-border data sharing agreement. This enables authorities in both countries easier access to electronic information held by tech companies. Access to multinational data was championed as the gateway to combatting serious crime and safeguarding national security. Greater data transparency and control were celebrated as the ultimate takeaway wins for corporations and citizens alike.

Transparency and control remained front of mind when Microsoft  rolled out the EU Data Boundary solution, a private initiative, on January 1, 2023. The act was designed to build on current residency solutions and offer more control over data as well as increased transparency, whilst maintaining EU regulations and industry-specific standards.

Large corporations and law firms with a global reach have grown increasingly concerned with protecting the international flow of sensitive data transactions, especially since the EU implemented  the General Data Protection Regulation (GDPR), covering both the EU and the EEA, in 2018.

Heralded as the toughest privacy and security law in the world, those in breach of GDPR face harsh penalties reaching into the tens of millions of euros. For big corporations and international law firms, data storage has grown so vast and is so widely distributed, it can be incredibly challenging to keep track of where data resides and if it complies with such unforgiving regulations.

The EU Data Boundary solution alleviates the pressure by allowing EU cloud customers to process and store their data in region. This empowers legal departments to take advantage of the full power of the public cloud while respecting European values and sovereignty needs.

As data volumes grow and e-discovery, investigations, and compliance exercises become more complex, the cloud is the most flexible, scalable, and secure way to manage data. Cloud architecture maximises throughput and seamlessly scales workflows, whilst removing the headache of having to keep pace with data processes. Automated redactions in the cloud further protect personally identifiable information (PII) and adhere to evolving global policy regulations.

Having instant access to the latest functionality in platform is one of the primary reasons many law firms and in-house counsel transition away from on-premises platforms. A SaaS model shifts the risk, cost, and server maintenance responsibility away from legal teams and onto software and service providers.

Automated security processes and transparent operations are essential to ensure law firms and in-house corporate counsel remain completely in control of their data—but without the headache of handling the demanding protection measures and relentless storage requirements.

Alongside superior security measures and easier regulatory compliance are the cost-saving benefits carried in the cloud, as pricing is not offered on a one-size-fits-all solution. Various subscription plans and pay-as-you-go options empower legal departments to tailor cloud packages to their requirements and budgetary parameters.

The number of law firms and corporate counsel migrating to the cloud and away from on-premises infrastructures is forecasted to increase steadily throughout the course of 2023.  The infinite volumes of e-disclosure data stored in a singular location and the flexibility to meet forecasts have become too tempting to resist.

Advanced AI is the Underpinning Narrative of Contemporary e-Disclosure

The bedrock of modern e-disclosure innovations and the forecasted trends of 2023 are made up of an ever-expanding network of transformative AI solutions. Relativity and others are helping law firms and in-house counsel streamline operational efficiency and cut costs at every corner, in the run up to an impending recession.

To find out more about the application of AI in the legal industry, visit here.

Graphics for this article were designed by Sarah Vachlon.

Join the Conversation by Subscribing to The Relativity Blog

David Horrigan is Relativity’s discovery counsel and legal education director. An attorney, award-winning journalist, law school guest lecturer, and former e-discovery industry analyst, David has served as counsel at the Entertainment Software Association, reporter and assistant editor at The National Law Journal, and analyst and counsel at 451 Research. The author and co-author of law review articles as well as the annual Data Discovery Legal Year in Review, David is a frequent contributor to Legaltech News, and he was First Runner-Up for Best Legal Analysis in the LexBlog Excellence Awards. His articles have appeared also in The American Lawyer, Corporate Counsel, The New York Law Journal, Texas Lawyer, The Washington Examiner, and others, and he has been cited by media, including American Public Media’s Marketplace, TechRepublic, and The Wall Street Journal. David serves on the Global Advisory Board of ACEDS, the Planning Committee of the University of Florida E-Discovery Conference, and the Resource Board of the National Association of Women Judges. David is licensed to practice law in the District of Columbia, and he is an IAPP Certified Information Privacy Professional/US.