2011 proved to be a lively chapter in the eDiscovery odyssey, with notable acquisitions of eDiscovery vendors by technology giants HP and Symantec, and a growing focus in the federal courts on creating strong judicial standards around eDiscovery.
As the amount of electronically stored information (ESI) continues to grow exponentially, it’s inevitable that the energy of regulators and the courts, along with the capital resources of strategic investors and acquirers, will increasingly be directed at eDiscovery software and services.
At the same time, the burgeoning costs associated with growing ESI will prompt litigants and the courts to look for innovative ways to reduce the cost of eDiscovery while continuing to effectively manage litigation and regulatory matters.
Against that backdrop, here are my 5 predictions for eDiscovery in 2012:
1. No Country for Old Pricing
In this era of big data, the amount of electronically stored information has continued to increase significantly, and along with it, the cost of eDiscovery under the industry-standard per-gigabyte pricing model. Because eDiscovery has become an integral part of litigation, market forces will require a re-evaluation of pricing strategies. In order to remain competitive, eDiscovery vendors will begin implementing alternative fee arrangements and flexible pricing structures in order to meet evolving client demands.
2. A Review to Remember
As the volume and variety of data sources required for eDiscovery continues to increase, serial litigants will find ways to ensure that knowledge gained in prior reviews can be utilized in future litigation. Rather than continuously reinventing the wheel for each individual matter, serial litigants will look to repurpose and leverage attorney intellectual capital in an effort to control costs. The use of master databases and purpose-built repositories are expected to emerge as a model for streamlining the process and cutting costs in various litigation and regulatory matters.
3. All Cloudy on the eDiscovery Front
Cloud services and social media will continue to muddy the waters, as social media content on channels including Facebook and Twitter and electronic information stored on offshore cloud servers are increasingly called into litigation. As cloud and social become increasingly pervasive in the enterprise, prepare to see landmark cases revolving around the discoverability and defensibility of these media.
To remain ahead of the curve, enterprises must proactively set up protocols that define access to social networks and thoroughly vet cloud vendors not only for security, but based on physical location. Enterprises will also focus more attention on negotiating favorable requirements around eDiscovery obligations with regard to data that is produced and stored in these channels.
4. The Human Element
While eDiscovery has been all about the latest and greatest technology over the past few years, 2012 will see renewed focus on the value proposition of people in the eDiscovery process. The creation of a hybrid solution that incorporates both the intelligent application of technology, coupled with human discernment and expertise to ensure defensibility will take center stage. As enterprises seek to predict, control and decrease costs while simultaneously reducing the risks associated with eDiscovery, the hybrid solution will prove to be the winning model.
5. For Whom the Judge Rules
I expect to see courts take an aggressive stance on managing eDiscovery as rulings from the bench continue to raise expectations around best practices. Regulators and legislators will take the lead of the federal courts and focus on the development of consistent rules and standards for eDiscovery. For example, FRE 502, which now limits the consequences of unintentional disclosures in Federal Court, and the willingness of the Civil Rules Advisory Committee to consider rule changes regarding preservation and spoliation are harbingers of the increasing focus that federal and state legislators will place on the codification of eDiscovery as a judicial process.
In 2011, it became abundantly clear that eDiscovery is no longer seen as a one and done event. Building a strong foundation for current and subsequent matters will be at the core of many changes we will see in 2012, as enterprises and law firms look for innovative solutions that will reduce costs, improve information security, and increase defensibility, even as the amount of ESI continues to grow.