Partnerships Will Take Lead Roles

Traditionally, the corporation’s outside counsel made all of the technology and staffing decisions for e-discovery. Then, with amendments to the Federal Rules of Civil Procedure (FRCP) in 2006, combined with increasing cost awareness, the shift began for corporations to take a more team-oriented approach. Going forward, e-discovery management will be a partnership between in-house counsel, outside counsel and service providers to navigate the cost and risk concerns associated with the process.

The focus on cost reduction and process efficiency has resulted in a strategy whereby clients create a master repository of data specifically for use in handling legal and regulatory discovery requests. Documents in the master repository can then be used across multiple legal matters, enabling the re-use and retention of valuable attorney work product such as privilege calls while also avoiding unnecessary re-collection or re-processing of data.

New case law as the result of a 2012 lawsuit involving the U.S. Immigration and Customs Agency found custodial self-collection inadequate in certain circumstances. As the judge stated in her opinion: “Most custodians cannot be ‘trusted’ to run effective searches because designing legally sufficient electronic searches in the discovery or FOIA (Freedom of Information Act) contexts is not part of their daily responsibilities … searching for an answer on Google (or Westlaw or Lexis) is very different from searching for all responsive documents in the FOIA or e-discovery context.” This opinion may have a wide-ranging impact on corporate collection practices.

Those considering the benefits of the cloud and are doing so for a variety of reasons, including freedom, cost-control and a continuing interest in being more efficient. For those not considering a move to the cloud, the No. 1 reason why they are hesitating to implement e-discovery management is the issue of security: specifically, data security and data privacy laws.

In the early days of e-discovery, especially after the Federal Rules of Civil Procedure (FRCP) were amended in 2006, corporations and law firms were eagerly seeking e-discovery practitioners with basic legal and IT expertise. Today, with the efficiency gains delivered by effective use of machine learning, analytics and visualization in e-discovery, attorneys with experience in these technologies will be in high demand.

Legal and IT teams are getting smarter about the costs of e-discovery and asking their law firms, software vendors and service providers for greater budget transparency. As e-discovery processes mature, legal teams will be able to better calculate and control the total cost of e-discovery, including legal review which often accounts for more than 70 percent of the expense.

From Foreign Corrupt Practices Act (FCPA) investigations to multi-jurisdiction litigation, there are many key “do’s and don’ts” for maintaining data privacy compliance across borders. Whether handling data privacy laws in Europe, Asia or Latin America, corporations collecting foreign data will need to work closely with local counsel and global service providers or keep the data in the country for processing and review.

What has the biggest potential to improve the e-discovery process, according to in-house counsel? Other than judicial changes to the process, 52 percent of inside counsel said in a recent survey that “reducing data volumes and risks through a defensible destruction program” would likely have the biggest impact.

Increasing data volumes have resulted in the need for tools to help analyze documents throughout the e-discovery process. Increasingly, this includes the use of analytics and visualization to better prepare for witness depositions and even trial presentations.

Industry surveys continue to show growing adoption of machine learning applications, such as predictive coding, as a method for eliminating non-responsive documents and prioritizing the review of potentially responsive materials. E-discovery teams are finding that when used by experts and combined with other analytics, predictive coding can help clients better adhere to their budgetary objectives and response timelines.