E-Discovery's Call to Action

Register now

The future is now when it comes to e-discovery, and the legal industry is more than ready for it. 2009 saw a decrease in demand for e-discovery consulting services in concert with increased software solution availability, the advance of litigating in the cloud, the rise of social networking, more mobile attorneys, and the migration of e-discovery services and solutions in house. We also saw a continuance of outsourcing for review and more litigation crossing international borders.

I spoke with e-discovery clients and partners to get a picture of what the coming landscape might look like.

E-Discovery Moves to the Clouds

Some attorneys already use cloud-based solutions outside of e-discovery, but the legal industry as a whole has been late to market in the adoption of cloud services. In 2010, e-discovery in the cloud will be the most transformative development in how legal process management technologies are created, delivered and accessed.

In a climate where legal teams are asked to do more with less, cloud technology has the power to deliver e-discovery solutions previously available only to Fortune 500 enterprises. Now, law firms and small to midsized corporations have an opportunity to level the playing field.

EDRM Evolves

In 2009, criticism of the traditional Electronic Discovery Reference Model rose to a crescendo. People tasked with executing day-to-day granular execution of e-discovery processes have noted that the guidelines of the EDRM don’t always reflect their processes. Although the EDRM was intended to be a strategic, best practices guideline rather than a set of rules, the time has come to increase the scope of and further compartmentalize industry standards on e-discovery. Two areas stand out as ripe for improvement.

Project management: The importance of project management for the e-discovery process is clear and demonstrated by forward-thinking legal consultants touting their project management skills, e-discovery opinion leaders writing and speaking on the topic, and the Sedona Conference report stressing the need for project management. Many disparate stakeholders are involved in every stage of e-discovery, from inside and outside counsel to vendors, litigation support, IT team members and custodians. This point solution tool frenzy is reflected in a legacy of collaborative problems, ballooning budgets, tight time frames and general chaos. A workflow overlay addition to the EDRM is needed, one that advocates collaboration and delegation rather than discrete task handoff.

Globalization: Multinational collaboration is now seen in many industries as a crucial component for litigation that crosses international borders. The EDRM is under pressure to provide best practices for the complexities brought to the industry by globalization. In 2010, EDRM project committee members will take on this daunting task and work to provide guidelines for international data exchange, EU compliance and foreign-language review.

Lawyers Act as Project Managers

It’s not just the EDRM that makes project management a bigger priority in 2010. Savvy litigators will take on a number of new competencies in 2010, including a more formal project management approach to e-discovery. Legal teams will more fully utilize workflow-based project management technology to move from a reactive approach to a measurable, repeatable business process driven by e-discovery practitioners with a broad knowledge base in both law and technology. Law firms will also move toward formal project management practices, since both project management processes and software enable the metrics they need to offer alternative and flat fee-based billing models.

Electronically Stored Information Grows in Importance

Many cases in the past couple of years hinged on the details of searching for, preserving and collecting data. These activities cannot be effective unless companies and legal teams can determine what information they have, where it is located, who owns it, when it was last updated, why it is or is not relevant, and whether it is accessible. With shortened time frames under the amended Federal Rules of Civil Procedure, it’s already too late to scramble to find answers to these questions once companies have been served, and pleading ignorance about the details around ESI relevant to the matter can lead to sanctions. Enterprise-wide data maps, which hold the power to greatly reduce the stress, time and billable hours required to answer the who-what-when-where-how questions of ESI, will move from a “nice to have” to “must have” in 2010.

Add Early Case Assessment

Early case assessment capabilities will likewise become a must-have feature. A solid understanding of the scope of information to be produced enables a more complete litigation strategy and accurate budgeting, and lowers the overall cost of the case by reducing the amount of processing, review and corresponding billable hours. Whether through integrations with in-place review tools or add-on modules, forward-thinking litigators and legal technology providers are adding ECA to their toolkits.

Legal Hold Notification Becomes Commoditized

In 2008 and 2009, the legal industry saw a commoditization of legal hold software solutions, which fits into a larger commoditization trend in legal services. Many companies and firms are finding new, more efficient ways to do routine and repetitive legal work, including outsourcing, subcontracting and standardizing processes with technology tools. The commoditization of legal hold notification will enable the market of 2010 to demand tight integration of legal hold software with the entire spectrum of EDRM solutions and processes, as well as incorporation of internal business processes.

Service and Solution Providers Collaborate

In 2009, a portion of consulting service providers’ market share was eroded by technology solution providers, as early as Q1 according to Huron Consulting Group’s earnings call transcripts. It’s clear that the services market is evolving, and we’ll see more collaboration between service and solutions providers to offer innovative pricing structures, hosted solutions and best-of-breed partnerships to meet evolving needs.

The e-discovery industry, predicted by Forrester Research to reach $5 billion by 2011, is changing at a rapid rate that shows no signs of slowing. More software choices, cloud’s rapid advancement along with social networking and a mobile workforce are advancing along with more outsourcing and international litigation. E-discovery practitioners are innovating, and the industry will continue to evolve in the next decade.

For reprint and licensing requests for this article, click here.