Trends in e-discovery

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By Tom Barkley – Tom.Barkley@EthicalBoardroom.com

E-discovery has been growing over the last few years. Themes and tools such as predictive coding and early scenario assessment methods are taking on a more serious and actionable role. E-discovery is increasingly demanding the involvement of additional electronic information disciplines such as records management, cyber security and corporate compliance. With these trends a more sizeable, more diverse group of stakeholders have been brought to the table of e-discovery implementation and discussion. E-discovery is subsequently being transformed and incorporated into a core part of an interwoven information governance framework that many companies are developing.

The changes are in e-discovery are challenging, and many enterprises are only just beginning to apply e-discovery principals towards defining an extensive information governance plan and framework to operate within. Forecasting e-discovery trends is not a simple or straightforward task. The regulatory standards and regulations that are applied in governing e-discovery requirements are constantly evolving, and the tools and technology supporting these requirements is continually innovating and changing at a rapid pace. The most dynamic software solutions and applications are taking the lead in this area as they are the best able to handle the ever changing landscape and needs of corporate e-discovery and the related information governance required.

A number of dominant trends are expected to take shape over the upcoming year in e-discovery. The first is an expected further convergence of relevant disciplines to be covered by the information governance bracket. Business, legal and IT industry based communities are becoming increasingly aware of information governance and research study survey findings have revealed that only very few  enterprises have made any real progress in implementing proper information governance programs. These companies have historically had a lack of alignment between information governance and other related disciplines, such as e-discovery and this disconnect is expected to change and significant progress is expected to develop on this front. E-discovery technologies that have been specifically designed to support information governance priorities are growing in popularity and use – one example is the progress made in the area of defensible deletion of data.  As e-discovery systems become more multi-functional and increasingly integrated, organisations will find it much simpler to create fully comprehensive information governance plans.

A further trend expected in e-discovery is an increased adoption of pre-collection analytics technologies by corporations. A significant challenge in e-discovery for enterprises is the ability to obtain useful and actionable intelligence regarding the costs and scope of an opportunity for use in negotiations with an opposing party. This dilemma has become acutely pronounced in age of big data as companies expect more and more information prior to the outlay of costs. Even straightforward matters can lead to the involvement of terabytes of data without a precise narrowing strategy in the discovery process. Emerging analytics technology, such as machine learning tools, will increasingly aid in quickly identifying and categorising potentially relevant data over the coming years. Existing predictive tools are expected to be applied and adopted further also, but typically in the past these have been applied after relevant collection and processing costs have been incurred. It is expected that in 2014, pre-collection analytics tools, technologies capable of analysing data from the source will be applied more and more prior to collection.  The variety and range of pre-collection analytics tools is growing and will enable improved accuracy of assessing data volumes and types. This will aid the development of more effective business arguments.

A further key trend for the upcoming year in e-discovery is a widening and increasing discussion and debate over potential federal rule changes with regards to information governance.

Changes are expected to be made to the Federal Rules of Civil Procedure (FRCP) in the US and the development of revisions is constantly ongoing. Over past years discussion of rule changes was largely unfruitful but the discussion is expected to have a more serious and impact oriented tone for 2014. Specifically to this end in August 2013, the Committee on Rules of Practice and Procedure of the Judicial Conference of the US submitted official proposals of amendments addressing e-discovery, and they have been accepting public comments regarding this matter until mid-February of 2014. The progress of amendments to date appears to be aimed at clarifying data preservation requirements and will encourage advance cooperation between relevant parties.

 

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