E-discovery is a continually changing practice. For approximately two decades now, it has played a tremendous role in shaping the legal world. As e-discovery’s influence and prevalence has grown over the years, the technologies, economics, processes and expertise around it have in many ways become unrecognizable to what they were in the early 2000s. Still, much about the field has also remained the same.
Today, e-discovery has expanded beyond litigation, now integral to regulatory activities, data privacy, records management and information governance. Pressure on in-house legal teams is rising with the increase in disputes around data breaches and the addition of stringent new global regulations, alongside expectations to reduce budgets. In a recent webcast with Exterro, I discussed these issues, the current state of e-discovery and the key areas that have evolved over the years. Below is an overview of the topics discussed, specifically the biggest shifts in the industry, and my thoughts on areas that remain unchanged.
- What’s Changed: We’re seeing greater adoption of platforms and technology to help support e-discovery professionals across multiple functions. Legal teams are increasingly adopting project management principles and tools to enable them, while at the same time rolling more processes into their toolsets. Because of this, the market has also seen an uptick in consolidation. Consolidation has been rapid in the e-discovery market for many years, but we’re seeing even more of it now, as the needs of corporate legal departments scale up and they increasingly lean on long-term partners that can support broader program development.
- What Hasn’t: Even with the consolidation of toolsets and the advancements in technology, there is still no silver bullet to solve every e-discovery challenge. Teams continue to grapple with how to use advanced features in the right ways, and to avoid becoming crippled by their technology suite. As always, the implementation of consistent, repeatable processes is essential.
- What’s Changed: Legal is moving away from the old-school fire drill approach. Reactive responses are expensive, stressful and laden with risk. Most companies today know their litigation profile and proactively develop playbooks for their most common e-discovery scenarios. As an example, in my previous in-house role, our team was forward-thinking in how we managed and accessed systems that would typically come into scope for e-discovery matters. We created an overview of our standard processes, which led to a more consistent, efficient and cost-effective approach to each e-discovery exercise.
- What Hasn’t: An efficient, proactive e-discovery program has been and will always be about more than technology. People, process and technology—in that order of priority—are critical to achieve e-discovery preparedness and cost containment over the long-term.
- What’s Changed: Proportionality has become a significant factor in e-discovery court orders, and cases are continually pushing forward on improved proportionality standards. Similarly, preservation and spoliation rulings are becoming more consistent, with the courts emphasizing the Rule 37e spirit towards reasonableness in preservation and spoliation sanctions. Both of these areas have come a long way from e-discovery’s early days. While the volume of cross-border cases has not changed dramatically, as GDPR and data protection regulations in other jurisdictions mature, more legal teams will be tasked with balancing the review and production of personal information with privacy requirements.
- What Hasn’t: With regard to proportionality, legal teams that deeply understand their own data environments continue to be in a much better position for negotiating e-discovery scope and arguing for what’s proportional. Additionally, the issue of cooperation with opposing counsel remains a charged one. Generally speaking, the courts expect parties to reach reasonable agreement on e-discovery in good faith, and this is widely agreed to be the ideal. But in practice, cooperation is somewhat pie in the sky. While progress has been made on better cooperation around search terms and scope, we’re still seeing many lawyers struggle to reach easy agreement in meet and confer conferences.
Risk and Compliance
- What’s Changed: GDPR and new data protection laws in the U.S. (e.g. The California Consumer Privacy Act) and around the world —and how they continue to impact e-discovery—have been major hot buttons for multinational companies in recent years. Roles and responsibilities are expanding, new challenges are arising, and opportunities are emerging. Forward thinking e-discovery professionals are mindful of this new and shifting landscape. Specifically, teams must look at their data footprint to determine where data flows in and out of the organization, what technology and process capabilities are needed to preserve and collect that information for e-discovery purposes and how legal obligations to preserve and produce certain data intersect with privacy obligations to destroy and protect it.
- What Hasn’t: Courts are not sympathetic to companies that do not preserve and collect data that comes into scope for e-discovery. Personal and corporate data is blended within most organizations, and courts maintain the expectation that counsel will find a way to deal with the related challenges.
E-Discovery Teams and Process
- What’s Changed: In-house teams are owning a bigger piece of the pie on the left side of the EDRM, taking control over processes such as legal hold, collection and first-level review. In the past, many legal departments outsourced their preservation and collection work, but today’s technology capabilities have made it easier for in-house counsel to do that work and reserve outside counsel for second review and highly complex matters. Further, e-discovery acumen is no longer limited to lawyers. Many companies now rely on e-discovery practitioners—that may not be lawyers but bring legal process and technology expertise—to manage e-discovery tasks and program management.
- What Hasn’t: In-depth knowledge of case law, changing regulations and emerging technology is still critical for e-discovery professionals to be effective. Keeping abreast of the current climate and being able to implement change in process and technology when needed will always be important. Also, many lawyers remain uncomfortable with technology and how to use the tools. Thus, reliance on outside partners that bring expertise in these areas has stayed steady.
Overall, the types of litigation e-discovery teams are facing today are very different from those we worked on historically. The types of technology available to support and streamline e-discovery will also continue to evolve. Legal teams must be flexible and agile to embrace change, adopt new technology and rise to unexpected demands as they emerge.
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.