Top 10 eDiscovery Trends

I had so much fun with Wednesday's Top 10 list, that I thought I'd end the week with another.

Over the past few months, I've had the privilege to host three separate webinars with William Morris and Jane Hils Shea from Frost Brown Todd LLC and Sunil Bhargava from Intellitactics.

William is an Associate in the Intellectual Property Department of Frost Brown Todd and, back in April, he addressed the issue of How You Can Secure the Infrastructure Around the Data You Must Save in a webinar with Ecora. In June, Sunil, who is the Chief Technology Officer at Intellitactics, joined us to highlight 5 Ways to Avoid High Data Loss Litigation Fines. Just last week, Jane, the chair of the Privacy and Information Security Law Practice Group at Frost Brown Todd LLC, share important information related to Current and Emerging Issues in Data Privacy Protection Law. You can click on each link to register and watch any of the presentation recordings.

Given the importance of IT documentation to litigation cases outside of the typical regulatory compliance headlines, I was pleased to see that Clearwell Systems, Inc. shared a paper on what they feel the Top 10 Trends in e-Discovery are. You can accesss the paper here.

  1.  "E-Discovery Teams" are Coalescing -- Recognizing that e-discovery is changing from an ad-hoc event to a formal business process, both law firms and corporations are beginning to develop cross-functional "E-Discovery Teams" to help navigate the transition from reactive fire drills to proactive management.
   2.  Early Case Assessments Become Mainstream -- Understanding where a party stands at the earliest stages of litigation is critical to the outcome of a case. By selecting the right technology and implementing tools optimized for e-discovery analysis, legal professionals are better able to find and interpret key case facts from mountains of electronic case data.
   3.  "Search" Goes Under the Microscope -- Recent case law scrutinizes attorneys who navigate the search process alone; consensus between parties is critical. For a keyword search to pass judicial muster, it must be an agreed upon "Collaborative Search Approach" or adopt a "Best Practices & Data Driven Search Approach."
   4.  E-Discovery Moves In-House -- Corporations are bringing pieces of e-discovery in-house to reduce costs and streamline the process. Certain tasks will likely remain outsourced (e.g., forensic collection, large scale distributed review), whereas other routine tasks are quickly being brought in house (e.g., searching, culling, processing, analysis).
   5.  Review Mantra: "Smarter not Harder" -- Reducing the size of case datasets by removing irrelevant documents has been proven to lower processing costs by up to 80 percent, and reduce review workloads by up to 90 percent. In-house and outside counsel have significantly fewer documents to review, thus lowering resource requirements and cost.
   6.  The Standard of Care is Rising -- Rapidly -- The bar and bench is now using a common language around a new set of e-discovery challenges that did not exist until recently. As a result, attorneys and the parties they represent are getting fined and sanctioned for e-discovery negligence and abuse that would have been overlooked a year or two ago.
   7.  ESI Expands Well Beyond Email -- Legal professionals recognize the need to choose an e-discovery method that is flexible enough to encompass emerging communication technologies such as blogs, Wikis,voice over IP (VOIP), Webmail services, text and instant messaging, etc.
   8.  Custodial Data Increases by Orders of Magnitude -- Increasing volumes of data have reached a critical "tipping point," placing greater importance on data searching and aggressive use of ECA to quickly cull down data sets, in addition to automated document review methodologies.
   9.  Non-Manual Document Review -- Rising costs and compressed production deadlines are influencing attorneys to employ an iterative searching process that automatically weeds out confidential and other non-responsive and/or privileged documents prior to production.
  10.  Vendors Struggle to Adapt to the Evolving Landscape -- E-discovery has become more complex and specialized; thorough research must be conducted prior to selecting a solution.

While much of what Clearwell addresses in the trends is specific to their offering, there are two things that are important to grasp when looking at e-Discovery that may be required as part of current or future litigation.

1. You will potentially need to store sensitive data in your systems longer than you have typically done, so that it will be available to produce in the event of litigation. Because of other potential regulations regarding the security of this data, you will need to be especially diligent to put proper safeguards around any part of your infrastructure that is involved in the use, transmission or storage of that information.

2. Often, rulings in litigation cases involving electronic information are determined based on the ability or inability of defendent to produce evidence to the court supporting that their systems were properly documented or that appropriate identity and access policies were actually being deployed and maintained in their infrastructure. Failure to continually document your infrastructure and validate the configuration setting against appropriate information security standards will likely cost you significantly, not only in fines but in court-imposed, mandatory ongoing audits. This is where an automated configuration audit and compliance reporting solution like Ecora Auditor Pro can yield tremendous benefits, not only to daily operations for identifying the root cause of system outages, but for avoiding potentially costly litigation settlements and reputation-bruising news headlines.

Contributed by Mark Tordoff

Comments

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E-discovery awareness improves, and e-discovery solutions get cheaper, mainstream attorneys are increasingly utilizing e-discovery to find evidence in their cases.E-discovery becomes more popular, law firms need to have a team that can respond to e-discovery projects.

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The real code base is dynamically created from the configuration and run-time data.

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