The year 2014 will be when we take the "E" out of e-discovery. When I started practicing law, there was no "E" in discovery. Rather, it was about exchanging paper documents prior to trial. As documents went digital, the need to consider electronic discovery arose. This new category needed a name. E-discovery seemed a perfect fit.
Today, electronic files make up the majority of this thing we call discovery. While paper documents still exist, they are the tail that no longer wags the dog. The big dog is now electronic discovery. In 2014, we will start to put the "D" back in Discovery, realizing that we no longer need a special category for what is now a ubiquitous process.
That said, discovery in 2014 will continue to be driven by the explosion of digital content. Corporations and their law firms will look for new and better ways to manage discovery and compliance obligations against ever-tightening budgets.
1. Technology Assisted Review Will Gain Widespread Adoption
While 2013 put technology-assisted review (TAR) in the limelight, many lawyers still perceive it with wariness. They express concern that TAR is a black-box solution outside their control. Lacking confidence, they question whether it will truly deliver a return on investment.
Last year saw increasing acceptance of TAR by two key constituencies: courts and clients. We now have a number of judicial opinions endorsing TAR as a viable tool. Many legal departments are pushing TAR as well because it delivers significant time and cost savings. Some even mandate its use in large-scale discovery.
With increasing acceptance by courts and corporate legal, TAR is certain to achieve more widespread adoption in 2014. Lawyers need to get on board before the train leaves the station.
2. Predictive Information Governance Will Be Talked About More
As TAR continues to rise in discovery, many are starting to ask whether the process might be helpful for other purposes. With litigation holds expanding, many companies are sitting on billions of emails and other documents that they can’t manage.
"If TAR can help us target important discovery documents, why couldn’t it help us manage compliance documents as well?" Good question. While there is work to be done, expect to hear more about this topic in the coming year.
3. Corporate Legal Will Demand Greater Control, Visibility and Reuse of Data
Under pressure to control costs, in-house counsel will continue to assume greater control over discovery decisions and demand more visibility into the process. Rather than leave it to outside counsel, they will turn to trusted vendors and reuse data across cases and counsel. Their goal will be to cut costs by managing their data more efficiently across their cases.
4. Multi-Matter Document Repositories Will Become More Common
Most e-discovery platforms handle documents one case at a time. Each time a document is needed for another matter, it has to be processed and tagged anew. This approach multiplies costs and increases risk. The new year will see cost-conscious legal departments turn to multi-matter discovery platforms, capable of storing a document and its metadata once and allowing it to be used in multiple cases.
5. The Asia-Pacific Region Will Continue to Expand in its Discovery and Technology Needs
We have seen increasing demand for electronic discovery in the Asia-Pacific region. What started as a tiny flame a few years ago ("What is e-discovery?") has turned into a larger fire, as even local governments are requiring that electronic data be produced along with paper files. Most Asian jurisdictions have introduced new rules and directives in the past few years. China seems to be following suit.
To date, most Asian discovery is driven by U.S. firms engaged in trade and IP disputes. Recently, many Asia-Pacific law firms have staffed up to take more control of these processes. There is huge interest in TAR for Asian-language documents. I expect Asian discovery to continue to grow over the coming year.
So, will 2014 be the year we take the "E" out of E-Discovery? That’s my bet. Dealing with electronic files is no longer a segment of the discovery process, it is the process. It is time we recognized that fact and drop the hyphen.
About the Author
John Tredennick is Founder and Chief Executive Officer of Catalyst. Over the past 30 years, John Tredennick has spoken before more national and international audiences on legal and technology issues than he or anyone else can remember. He has written and edited five best-selling books and countless articles on litigation and technology issues. He is one of a small number of people who pioneered the e-discovery industry.
In 2013, the American Lawyer named him among the six most important "E-Discovery Trailblazers." He has also been named one of the "Top 100 Global Technology Leaders" by London's CityTech magazine and to the 2012 FastCase 50, which recognizes 50 of the smartest, most courageous innovators, techies, visionaries and leaders in the law. Tredennick also served as a member of the Short Course Faculty at the University of Virginia Law School, where he taught the course, "Electronic Discovery in a Global Environment" and he regularly lectures at other law schools and e-discovery training programs.