Top Five eDiscovery Predictions For 2012

Thursday, November 17, 2011 - 13:21

The one constant in the electronic discovery (eDiscovery) market is change. A primary driver of this change is technology, which, paradoxically, represents both the cause and the remedy. Changes in technology present some interesting implications for the eDiscovery and governance, risk and compliance (GRC) marketplace in 2012.

CaseCentral’s top five eDiscovery predictions for 2012 include:

1. The cloud is here to stay

Many have realized that “the cloud” is simply another delivery model for many different solutions, from storage, to applications to complete computing infrastructures. And there can be significant economic and time-to-market benefits by using a cloud-based approach. Whether you call it software as a service (SaaS) or cloud-based, the adoption of cloud computing will accelerate in 2012.

In October, 2011, a KPMG survey concluded, “the cloud is now,”  saying, “the vast majority of senior executives say their organizations have already moved at least some business activities to the cloud and expect 2012 investment to skyrocket, with some companies planning to spend more than a fifth of their IT budget on cloud next year.

In the KPMG report, real and perceived benefits of utilizing cloud computing include, “economic factors (which) were cited by 76 percent of both groups as an important driver for cloud adoption. However, a number of other considerations were equally or more important: 80 percent said the switch to cloud was driven by efforts to improve processes, offering more agility across the enterprise; 79 percent of users and 76 percent of providers said they saw it as having technical benefits, in some cases improvements that they otherwise could not gain from their own data centers; and, 76 percent said the use of cloud would have strategic benefits, possibly including transforming their business models to gain a competitive advantage.”

The KPMG report demonstrates the broad-based move by corporations, organizations and consumers to the cloud. Of course, while you may already be using many different cloud-based applications and services, it is important to remember that one size does not fit all. Your particular needs may require a private cloud infrastructure versus a public cloud, you may require specific security protocols, or you may require service level agreements (SLAs) for uptime or disaster recovery.

2. Big data and business intelligence meet eDiscovery

According to International Data Corporation (IDC) and EMC, the world’s information is now doubling every two years. In 2011 alone, we will create 1.8 zettabytes of new ESI. A zettabyte equals 1 billion terabytes. To put that in perspective, in 2009, the entire contents of the Internet was estimated at only half a zettabyte, which is equivalent to a stack of books stretching from the Earth to Pluto 10 times. The amount of electronically stored information we are producing also creates problems in managing, analyzing, searching and using it. This is called “big data.”

Big data is already upon us and takes center stage in 2012. The October, 2011 McKinsey Quarterly posits, “Over time, we believe big data may well become a new type of corporate asset that will cut across business units and function much as a powerful brand does, representing a key basis for competition.”  Unsurprisingly, if we are creating this much data, it will increasingly end up in litigation, regulatory requests and more, so big data becomes an issue in eDiscovery, too.

According to IDC, “new capture, search, discovery and analysis tools can help organizations gain insights from their unstructured data, which accounts for more than 90 percent of the digital universe.” Many of these tools fall under the rubric of “big data analytics” and “business intelligence.” For eDiscovery, this means tools that provide enterprise eDiscovery dashboards that enable a business-level view of the costs, timeframes and risks of a single case or a multi-case environment so that better decisions can be made and better workflows can be implemented. It also means that we will continue to see new technology and tools, such as connectors to enterprise data sources, that enable processing and automation of large data sets.

Big data requires measurement, and, it has been said that you cannot improve what you cannot measure. According to Enterprise Strategy Group (ESG) in a 2011 survey of corporate counsel, “Most organizations are not tracking e-discovery spending.” Furthermore, ESG found that, “While they expect e-discovery competency of their firms and consider it an important factor in selecting outside counsel on a case, less than one-third of respondents have ever tracked the productivity or efficiency of document review.”

 

3. New technology drives real changes in how data is identified, collected, processed, reviewed, analyzed and produced

As we exit 2011 and head into 2012, we’ve been introduced to many technologies and approaches that will continue to impact our behaviors and workflow, including predictive coding, computer-aided review, automated data classification, dynamic concept search, data visualization, threading and automated data connectors.

If you accept the arguments about big data and eDiscovery (above), then in 2012 you are inevitably looking for technology and tools to help you stay ahead of the curve. While all of the technologies mentioned above will have an impact in 2012, the elephant in the room is the belief that manual review by humans is the standard and, therefore, more accurate than any computer or software application. However, the volume of ESI today makes it virtually impossible for reviewers to effectively continue with the practice of linear review.

The Richmond Journal of Law and Technology Vol. XVII, Issue 3, Article 11 (2011), provides some compelling evidence in support of the statement that, “Technology-assisted review in E-Discovery can be more effective and more efficient than exhaustive manual review.”   In fact, the report commented, “ . . . that assessors disagree at least as often as they agree that a document is relevant.”  This suggests that tossing a coin may be an equally good determiner of relevance as manual review. The report concludes:

  • Technology-assisted review finds at least as many responsive documents as exhaustive manual review (meaning that recall is at least as good).
  • Technology-assisted review is more accurate than exhaustive manual review (meaning that precision is much better).
  • Technology-assisted review is orders of magnitude more efficient than manual review (meaning that it is quicker and cheaper).

4. Data collection continues to become more complex

In 2012, data collection will be more complex, not only because there will continue to be immensely more of it, but also because the number of locations from which to collect data will continue to increase. This challenge spans behind the firewall storage, email, archives, applications and computers, cloud-based business applications and systems, a dizzying array of social media and also mobile devices, including smart phones and tablet computers.

As a result, more automated and intelligent identification, collection and processing tools will continue to gain mindshare. These tools will enable targeted identification, collection and automated processing in a forensically sound, legally defensible manner.

5. Corporate eDiscovery processes continue to mature.

Gartner Group vice president and distinguished analyst Debra Logan presented "Case Study: Best Practices in E-Discovery” in June, 2011. During the presentation, she displayed an eDiscovery Maturity Model that provides an accurate view of the various stages of the corporate trend of bringing the eDiscovery process in-house.

Most cases start off very quickly, often with little emphasis on planning prior to implementation. As corporate eDiscovery processes continue to mature in 2012, best practices will involve identifying stakeholders; holding regular status meetings; managing timelines, workflow and production requirements; tracking and measuring progress; and standardizing on identified best practices. eDiscovery is fundamentally a collaborative and time-sensitive process that involves multiple geographically dispersed participants.

From a technology perspective, more mature organizations will move towards utilizing centralized legal repositories to support a multi-matter eDiscovery process and rely less on single matter and ad hoc management of individual cases. Benefits of this approach include 

  • leveraging work product (coding, privilege decisions, etc.) between or among related cases;
  • avoiding over-collection by collecting and processing only “net new” data not collected for previous matters;
  • reapplying searches and queries against net new data collection;
  • protecting privilege across all cases easily to avoid inadvertent production of privileged documents;
  • standardizing processes and workflow via templates; new cases can be set up in minutes from existing, approved best practices.

Please email the author at sdalencon@casecentral.com with questions about this article.