What You Need to Know About E-Discovery in 2010

by Chris Preimesberger

In 2009, ECA moved into the mainstream as a methodology to quickly understand case facts, assess risk, and lower both data processing and attorney review costs. However, in 2010, with the advancement of products and the increased socialization within the bar and the litigation support community, ECA will graduate into a core methodology for savvy litigators—regardless of matter type or size.

Appetites for broad information lifecycle management initiatives will diminish as organizations realize these programs are far too complex to solve specific pain points, and they often take too much time (measured in years) to execute. The economic reality is that these holistic, cross-system, cross-department initiatives often fail to demonstrate the return on investment necessary in today’s challenging economy.

The role of an in-house e-discovery coordinator will emerge as more of a project manager across the entire e-discovery process and will have expertise in both legal and IT. This shift will become increasingly necessary as e-discovery evolves into a standard business process that is repeatable, measurable and defensible.

Data analytics and statistical methodologies will gain traction to augment the type of subjective decision-making approaches that have historically formed the backbone of e-discovery search processes.

Integrated e-discovery platforms will finally become a reality as customers graduate from painfully stitching point solutions together, thus requiring less physical document exporting and importing between applications, cutting costs and increasing defensibility.

Associate-based linear document review processes will gradually become extinct, as both clients and law firms grow tired of expensive, brute force review processes.

Federal Rule of Evidence 502, enacted in 2008, protects against the inadvertent waiver of the attorney-client privilege or the work product protection. This and other “clawback”-type agreements will be increasingly used to reduce the need for any manual, eyes-on review.

Alternatives to the Electronic Discovery Reference Model (EDRM) will gain traction as practitioners strive to find an even better, and perhaps more practical, project management framework.

The push for cooperation in the e-discovery process will make incremental progress. Increasingly, this type of cooperation, as advocated by the Sedona Working Group, will be forced by judges and local rules. Sedona has been successful in getting the bench on board this initiative, and more than 100 judges who have signed up to show their support.

Cloud computing will begin to impact how e-discovery data preservation/collection is done, both in terms of social media and traditional applications. Companies will increasingly block social media applications due to fears surrounding the inability to preserve and collect this content. Companies will also demand that e-discovery products support preservation/collection from applications sitting in the cloud without significant degradation in performance and response times.