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January 01, 2011

Electronic Discovery Outlook for 2011

This article originally appeared in the Jan. 2011 issue of InfoTECH SPOTLIGHT

 

In the past several years, electronic discovery (e-discovery) has become the equivalent of a four-letter word for large enterprise IT and legal departments, which have struggled to deal with the cost and complications of this relatively new discipline. The process of manually collecting, processing, analyzing and reviewing email and electronic documents in response to investigations, litigation and regulatory inquiries has in fact become so costly – and fraught with risk – that many organizations have taken steps to automate and take control over the process. 

As a result of the push to establish greater control, enterprises have increasingly begun to instill e-discovery as a core business process. Many companies are even taking an additional step of appointing a director of e-discovery who understands both the IT and legal landscapes. Yet even as legal and IT teams establish a beachhead against existing challenges, new ones arise almost daily – requiring enterprises to adapt once again.

Furthermore, the proliferation of social media has opened up a new can of worms for enterprise IT and legal departments to address. The challenges surrounding the data stemming from both employee use of external social media and corporate use of these channels internally are largely unprecedented in e-discovery. No enterprise wants to become the test case for courts looking to set a precedent for how “not” to handle social media e-discovery.

The following five predictions are what we expect to create the biggest waves in e-discovery in 2011. Enterprises that can understand the implications and proactively prepare for this evolving landscape will be well equipped to keep steady control over both costs and risks despite the ever-changing challenges of e-discovery.

1.                  Changes in Forensic Best Practices: In 2011, manual forensic imaging will continue to take a backseat to more automated, forensically sound data collection techniques. Forensic (bit for bit) images have long been the gold standard for the legally defensible collection of ESI (News - Alert) in response to legal proceedings. However, while forensic imaging will continue to be important in a number of discrete situations (fraud, misappropriation of trade secrets cases, criminal matters, etc.), it will largely be seen as overkill in most electronic discovery cases. Since imaging is both time consuming and highly manual, savvy organizations will increasingly use automated, forensically sound collection tools to perform targeted collections.

2.                  Proportionality Becomes Reality: Burgeoning data volumes, as seen in multi-terabyte (versus gigabyte) cases, means that the legal community will continue to search for ways to prevent electronic discovery costs from exceeding legal exposure and attorneys’ fees. Groups like the Sedona Conference will continue to push for better clarification within the legal community surrounding “proportionality” in order to keep the electronic discovery “tail” from wagging the litigation “dog.” If this push is successful, there may be a slight respite for litigious enterprises that may be able to better scale e-discovery efforts with the risk profile of the matter at hand.

3.                  Collision of Cloud, Social Media and E-Discovery: The seemingly unstoppable migration of corporate data to the cloud, combined with the proliferation of social media applications, will continue to stress electronic discovery practitioners as they attempt to preserve, collect, search and process electronically stored information (ESI) from sources that aren’t traditionally managed behind the firewall. Proactive enterprises will increasingly evaluate the legal and compliance risks of storing data in the cloud so that they’re not painted into a corner when they need to preserve, collect and produce offsite ESI.

4.                  Consolidation in the Electronic Discovery Industry: Consolidation in the electronic discovery sector will impact market forces and the balance of power. The past year saw large technology vendors recognize the growing e-discovery market opportunity and aggressively acquire pure-play electronic discovery companies. In the upcoming year, we will continue to see large enterprise software companies enter the e-discovery sphere through acquisitions.

5.                  Global E-Discovery Matures: International jurisdictions will increasingly look to the United States (and the Federal Rules of Civil Procedure) as their nascent electronic discovery paradigms are increasingly stressed by the proliferation of both ESI and discovery disputes. The recent Goodale case out of the UK, and impending procedural changes to the e-Disclosure Practice Direction, demonstrates how the global community is rapidly maturing along the electronic discovery continuum.

In the past, the crux of most discovery matters usually centered around email and sometimes instant messaging. In 2011, new problems will continue to crop up, such as collecting SharePoint data from the cloud, trying to extract structured data from a range of proprietary systems and capturing ephemeral ESI from an ever-changing array of social media applications.

While the tools and best practices designed to combat e-discovery hurdles continue to mature, new challenges are multiplying at any equally fast rate, meaning IT and legal departments must remain nimble and educated on the challenges to respond accordingly. 

Dean Gonsowski is a licensed member of The Sedona Conference Working Group on Electronic Document Retention and Production and is vice president of e-discovery services at Clearwell Systems (http://www.clearwellsystems.com).


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Edited by Stefania Viscusi