Trends to watch in e-discovery

Nearly every corporation will eventually be sued for some reason, and once that happens, companies will be forced to sort through mountains of electronic documents trying to find information to defend themselves against potential million-dollar judgments.

Therefore, every corporation needs to familiarize itself with the changing landscape of e-discovery – the process whereby electronic data is sought, secured and searched so that it can be used as evidence in a civil or criminal legal case.

Whether it’s messages on social media platforms or important legal documents on computer hard drives, every bit of information counts and must be accounted for when performing e-discovery searches. There are various software solutions that can help companies comply with the legal requirements of e-discovery, but before committing to buying products, corporate secretaries should first familiarize themselves with the changing dynamics of information governance and the new trends in the e-discovery industry.

Barry Murphy, co-founder of eDiscovery Journal Group, says that when choosing from the ever-expanding number of products and services within the e-discovery universe, things can get confusing. ‘Vendors muddy the waters with marketing-speak because they need to differentiate what they offer from the others,’ he explains.

More confusion arises from cloud computing and the process companies must go through to migrate their information onto servers or computer networks that belong to a third party. The legal and privacy issues surrounding document searches for evidence on third-party servers are still being sorted out.

Perhaps the biggest problem corporations are facing is adaptation – changing paper documents into digital form and becoming comfortable with the different types of digital documents that must be filed, categorized and disposed of properly. This is particularly important because experts project that the need for e-discovery might peak this year, and governance officers will be tasked with sifting through the available solutions so that they can conduct e-discovery searches quickly and effectively.

Social life

James Moloney, a partner at Lathrop & Gage, pictured left, believes the increasing use of social media among employees and senior management can pose serious legal risks. He says there’s a fine line between what is considered work versus what is thought of as mere social activity when using networking tools like LinkedIn or Facebook. ‘Information used in a public setting is discoverable in litigation and can be used against the company as a form of evidence,’ Moloney says.

Neglecting to understand how social networking websites are being integrated into information systems can cause compliance problems. Furthermore, if a company’s in-house counsel is unaware of the type of information being stored and where it is located, penalties can be assessed.

‘Corporate secretaries, in particular, should familiarize themselves with their own technology – they need to know where data is stored and how to access it,’ Moloney stresses. ‘Sometimes a company is so consumed with controlling costs that it fails to learn what type of data is being stored. If this can be determined beforehand, the corporate secretary will be on the right track prior to any litigation.’

Murphy raises a similar point, explaining that lawyers must be aware of their e-discovery process because jurisdictional issues can surface. ‘Lawyers need to make sure data does not cross country borders when it shouldn’t,’ he notes. ‘Also, they need to avoid violating privacy laws when reviewing or producing data, which can be especially tough when dealing with new types of public forums like social media.’

Litigators are becoming more tech-savvy, since courts typically take a dim view of companies that fail to manage their records properly. From a legal and technological standpoint, the real challenge this year will be whether governance professionals can keep up with the changes in e-discovery – better preparation equals a better e-discovery outcome.

Barry Murphy, co-founder of eDiscovery Journal Group, offers his predictions for the e-discovery industry in 2012.

Continued growth of the cloud for information governance and e-discovery, but at a slow burn: There’s no stopping the freight train that is the cloud, but legal, privacy, security and control issues will force some to apply the brakes a bit.

Continued evolution from processing applications to early case assessment to e-discovery platforms: In 2012, more vendors will be able to offer integrated platforms. Gone are the days when any organization will buy just a simple processing engine. Processing applications must evolve to add collection and preservation, analysis, review and even some level of production, in order to provide compelling early case assessment.

Emergence of information management platforms: Large enterprises face huge challenges dealing with ‘big data’ (datasets that easily multiply and become a challenge to work with). Big data covers both structured and unstructured content. Companies need to leverage all information for strategic advantage while ensuring they know what they have, where it is, how to get it and what it means for e-discovery purposes. In the minds of corporate practitioners, preservation ‘in place’ would be the panacea for many of their retention headaches. An information management platform could potentially deliver such benefits.

Social media collection and preservation heats up: The use of social media tools has created brand new collection and preservation challenges, with diverse native formats and new types of metadata.

Predictive coding goes mainstream: Many organizations experimented with predictive coding in 2011. This year, look for some interesting case studies to emerge that allow the legal community to feel more comfortable with the defensibility and accuracy of predictive coding.

Corporations continue to get smarter about e-discovery: True e-discovery best practices have been few and far between because of the pace of change and information volume challenges that companies face. According to eDiscovery Journal, 2012 will see corporations getting better at managing e-discovery as a process. One way they will do this is by being able to quantify e-discovery spending. Metrics such as average spend per document will emerge; these will feed early case assessment and intelligent legal decision-making.