eDiscovery 2012 – Where We Have Been and Where We are Going – A Look Back At the First Half of the Year and Predictions For the Last Half of the Year

2012 has been an active and interesting one on the eDiscovery front thus far.  What follows are a few trends from the first part of the year and some predictions for the remainder of 2012 and beyond.

Where the eDiscovery Industry has been Over the First Part of 2012

1.  Predictive Coding – It is all the rage and this year’s hot topic in eDiscovery.  Will it revolutionize the industry and document review in particular?  Possibly.   Is it going away anytime soon?  Nope.  As an eDiscovery practitioner, do you need to know about it?  You bet you do.  The first part of 2012 has witnessed all of the major platform providers rushing to integrate this technology into their product, and some will ultimately have better products and be more successful than others are.  Remember, not all so-called predictive coding tools and technologies are created equal.  So, while the trend is to offer predictive coding, time and customer satisfaction will sort out who offers the best product for the right price.  Regardless of which company or companies win this battle, quality predictive coding products are starting to be, and in the future certainly will be, major players in the field for years to come.

2. Da Silva Moore – Any discussion of predictive coding in 2012 would not be complete without a mention of the Da Silva Moore case.  The most highly discussed and scrutinized eDiscovery case in years, Da Silva Moore once focused on judicial approval of predictive coding but quickly denigrated into a motion battle focused on Judge Peck’s actions rather than the merits and proper use of predictive coding.  Nevertheless, the case has brought tons of publicity to predictive coding, and may yet have a larger impact on the technology, as the case, and all the acrimony, churn slowly on without a definitive resolution to the predictive coding aspects.

3.  Spoliation and Proportionality – These topics have played second fiddle to predictive coding this year, but case law indicates that courts are considering these principals more and more and they are holding litigants to tighter standards.  No longer can clients or their attorneys get away with claims of being unaware or ignorant when it comes to spoliation.  Likewise, litigants are becoming bolder in challenging requests for large amounts of data, and judges are agreeing to limit requests in greater frequency.  Furthermore, it is a proportionality argument that lies at the heart of predictive coding’s value and reason for use; given the ever-expanding amount of data in the world, it is no longer proportional to review every document without the aid of technology and technology assisted review, such as predictive coding.

4.  Consolidation – The software products used in the eDiscovery field and the companies that create them are in an arms race to see who can add the most functionality to their product across the EDRM spectrum.  This creates one-stop shop products, but may also drive niche, one function, products out of the market and raise prices.  Additionally, although the products may do it all, they may not do it all well.  Similarly, law firms are challenging eDiscovery vendors by creating their own eDiscovery practice groups and bringing the latest technology in house in an effort to bring those billable hours back into the firm, but at what cost to clients?

5. Model Orders, State Rules, and Pilot Programs Oh My –  Since late 2011, there have been a plethora of eDiscovery related standards, rules, model orders, and programs unveiled by different entities around the country, including: the U.S. Court of Appeals for the Federal Circuit, the U.S. District Court for the Southern District of New York, the U.S. District Court for the Eastern District of Texas, the U.S. District Court for the District of Delaware, the State of Pennsylvania, and the State of Florida.  Additionally, the Seventh Circuit recently concluded phase two of its Pilot Program on eDiscovery.   These various efforts are driven by a desire to standardize procedures and practices to contain eDiscovery costs and avoid unnecessary delays and disagreements.  Some will have greater longevity than others will, but they are all evidence of a growing judicial and administrative recognition of the impact eDiscovery is having on our legal system and the need to do something to improve the situation.  Likewise, the diversity of solutions offered is evidence of eDiscovery’s complexity and the lack of consensus regarding how to approach and manage it.

Where will the eDiscovery Industry Go Over the Next Six Months and Beyond

1.  Da Silva Moore – The Da Silva Moore case will continue to dominate the eDiscovery headlines, both as theater, and eventually as precedent (even if unofficial).  This is by far the highest profile predictive coding case that exists and everyone in the eDiscovery industry is waiting to see how it turns out.  Given its high profile, there will undoubtedly be much analysis and commentary on the outcome of the predictive coding battle and the case itself.  Hopefully, the scrutiny will shed some light on the cost, accuracy, and efficiency of predictive coding in a real case using real data.  If that does in fact occur, that will be lasting legacy of Da Silva Moore on the eDiscovery world, one that is much nobler and of higher value than the soap opera it currently perceived as.

2.  The Cream Will Rise to the Top – Certifications, conferences, and eDiscovery education providers will continue to vie for prestige, patronage, and above all your long-term support.  Over the past few years, we have seen numerous eDiscovery organizations and conferences spring up, including, among others, ACEDS and its annual conference, the Carmel Valley eDiscovery Retreat, and the Electronic Discovery Institute’s EDI Leadership Summit.  At times, these events have directly competed against each other and the various organizations and conferences that already exist.  At the same time, longstanding original players like Sedona and EDRM are looking at their purpose and goals and deciding on what and how they should focus their energy in the future to remain relevant and influential.  The eDiscovery conference market has reached a point of saturation, with people in the industry only willing to attend so many events a year and recognizing that there are only so many relevant panel topics.  From a participant’s perspective, why would you spend thousands of dollars to attend a conference that has four to five panels on the same topic (which topic by the way is also discussed at every other industry conference)?  From a vendor’s perspective, why would you spend thousands of dollars for an exhibit at a conference that is primarily attended by other vendors?  These competing organizations and conferences must find ways to differentiate themselves and provide a unique value proposition or the market may force them out.

3.  Smart Phones, Tablets, and Social Media are Game Changers - More and more I am hearing how e-mail will soon be replaced as a communication medium by methods such as texting and tweeting among others.  While I am not ready to declare e-mail dead (or even dying), there is no doubt that data created by non-traditional devices and/or in non-traditional sources (such as smart phones and tablets and on social media sites) will continue to proliferate both in data volume as well as in potential collection sources.  New niche industries and players (X1 is an example) will develop to preserve and collect this data in an accurate and useable format, and practitioners will need to adapt and fit this data and this new technology into their processes and workflows.  Individual social media sites and companies may disappear, as may technology brands and models, but the mobile social media lifestyle itself, and the challenges it poses for eDiscovery will not disappear.  The eDiscovery industry needs to catch up as quickly as it can.

What exactly the next big thing or big case in eDiscovery will be is difficult to predict, but regardless, the eDiscovery industry has been, is, and will continue to be an interesting, evolving, fast pace industry that is one to keep an eye on.