Anyone who’s been in the e-discovery industry for any length of time knows that change is the only constant. It’s a practice and industry born from the very notion of change, and has been evolving steadily since its early days two decades ago. What’s happened over the last year is that the rate of change is now quickly picking up momentum. Trends that were just emerging in 2019 took full shape and began disrupting the space in 2020. More advancements—in the demands of e-discovery and the innovations brought forth to meet those demands—are on the horizon. We spoke with several experts across our Digital Forensics & Investigations and E-Discovery Consulting & Services practices to hear what trends they expect to see in this new year. A snapshot of their predictions are shared below.
David Meadows, Senior Managing Director, E-Discovery Consulting & Services
“Due to COVID-19, remote data collections will become the norm for investigations and discovery matters. To a great extent, the legal industry has been able to make remote data collections work because it’s had to, but in 2021—even after there is no longer a health reason to work remotely—I think we’ll see remote collections continue to be accepted and become the norm in many cases.”
Dan Roffman, Senior Managing Director, Digital Forensics & Investigations
“The coronavirus sped up the adoption of technologies like Microsoft Teams, Zoom, Slack and other collaboration platforms as replacements for emails, in-person meetings, and conferences. These technologies will play a larger role in investigations in 2021, and teams will start to feel the pain of how to integrate them into their investigations and e-discovery workflows. I think undoubtedly one day we’ll see one of these ‘emerging’ sources become the centerpiece of a dispute over spoliation stemming from a litigant failing to preserve relevant communications on these platforms.”
Tim Anderson, Managing Director, E-Discovery Consulting & Services
"2020 was the year that cloud collaboration tools were recognized by legal teams as a source of discoverable content, and in 2021, their processes will start to catch up. As part of this, legal e-discovery teams will spend considerable time in 2021 sifting through the massive amount of data generated in growing new information sources like Slack, Teams and Zoom. Agile teams will combine tailored workflows with technology enhancements to leading review platform technologies to accomplish discovery objectives."
Elizabeth Noble, Senior Director, E-Discovery Consulting & Services
“Many companies plan to continue allowing their employees work remotely for the coming six to 12 months, and are quickly adopting new applications and technologies that make it easier for teams to collaborate in a remote environment. For legal teams, this is creating a tidal wave of emerging data sources that may need to be incorporated into e-discovery activities. In the coming year, in-house and outside counsel will need to get up to speed on these new data sources and be ready for how they are likely to impact their discovery matters.”
Megan Danilek, Senior Consultant, Digital Forensics & Investigations
“With the increased use of applications such as Slack and Microsoft Teams and other cloud-based services, companies are now dealing with a much larger and more diverse pool of data sources that may need to be collected for evidence in legal matters and investigations. For digital forensic investigators, this means new challenges in accessing data that has been encrypted in transit and at rest and preserving metadata that may contain important pieces of evidence. Similarly, increased adoption of mobile messaging encryption will introduce additional barriers that make it difficult for investigators to recover information. As a result, organizations will need to ensure their legal and compliance teams have access to the most up-to-date forensic tools and engage with investigators who understand how to navigate the challenges of mining evidence from these new data sources.”
The views expressed herein are those of the author(s) and not necessarily the views of FTI Consulting, its management, its subsidiaries, its affiliates, or its other professionals.