Predicting the Future of E-Discovery

Craig Ball posted his insightful “Crystal Ball” predictions for the future of e-discovery in the January 2008 issue of Law Technology News. That inspired me to compile a list of other e-discovery prognostications from around the Web.

ediscovery crystal ball.jpg

I am thrilled to see Craig Ball highlight virtual machines as an important trend for the collection of electronically stored information (ESI). I don’t hear many e-discovery vendors talking about this trend, but I do see a lot of IT professionals reporting the glories of virtualization. That means if you’re collecting ESI, you will encounter virtual environments so you better be prepared.

Next, Craig declares that “data is the ultimate portable commodity” because personal information today increasingly lives on portable media and the Internet. Who doesn’t have a USB memory stick? I have friends that use “portable apps” to transport their entire digital world (office work, e-mail, etc.) back and forth from the office.

Now we’re hearing more and more about “cloud computing” where applications and data storage are dispensed from server farms rather than local computers. For example, e-mail is handled completely online by Gmail, documents are hosted by Zoho Office, billing/invoicing is done by Freshbooks, projects are managed in Basecamp, and contacts are stored on Salesforce.

ediscovery in a cloud.jpgThis prediction is echoed by Dennis Kennedy, who recognizes “EDD in the Cloud” as one of the three most important e-discovery trends out of his broader list of 26.

Those of us involved in electronic discovery must stay aware of these trends because we cannot afford to fall into the trap of thinking that everyone keeps their documents on their C: drive just because we do. Not everyone will keep their data in the cloud, but you can’t afford to leave that stone unturned.

Similarly, law firms and corporations who are reviewing large collections of documents for litigation are electing to host those files in the cloud rather than taxing their internal resources. This was a trend that Dennis raised in his legal technology trends for 2007. Craig Ball predicts that low-cost desktop review tools will become more popular while declaring that “hosted production” will soon become accepted:

“We bank and do our taxes online. Soon we’ll receive and review ESI the same way.”

The desktop review tool can simply be pointed to wherever the data lives – locally on a LAN, or across the world on a server farm.

Inspired by Craig Ball’s predictions, Tom O’Connor predicted five “general trends” for 2008.

Tom first posits that runaway spending in e-discovery will level off in 2008. I hope he’s right.

Tom also declares that “tension between corporate counsel and outside counsel will increase” as corporations strive to cut costs. Tom is right on the money here because corporate counsel are getting much better at educating themselves on e-discovery rather than blindly relying on their outside counsel.

This view is shared by Neil Squillante over at TechnoLawyer, who put forth some of his own predictions this year. Neil promotes what he calls the “apotheosis of the general counsel”:

“…with the rise of electronic discovery, corporate counsel find themselves in need of technology solutions that didn’t exist five years ago. Chief among these — applications for archiving email and other documents in anticipation of lawsuits, and applications for preserving and culling relevant documents from these archives after being sued but before engaging outside counsel.”

I wholeheartedly agree with Tom O’Connor’s third prediction: “growth in the market will occur at the state and local level.” I’ve written about the states adopting e-discovery rules before, and it is inevitable that lawyers who litigate in the state and local courts will have to deal with ESI, regardless of their penchant for avoiding it.

There will be some interesting action in the e-discovery space this year – some bad and some good. I continue to be amazed at how the inclusion of electronic data transforms the world of litigation. The practice of law is so dependent upon tradition for its survival, which means that change always comes slow. But dealing with e-discovery requires new strategies and new knowledge. There is no doubt that the legal profession will adapt (lawyers are constantly learning), it’s just going to be a bumpy ride.