E-Discovery’s Evolution: Critical Implications for Law Firms, Providers
**This article first appeared in The Legal Intelligencer’s E-Discovery Special Section | February, 2019
In 2006, Wired magazine published an article about the advent of the e-discovery industry. In it, the author notes that many e-discovery vendors at the time provided very similar services—harvesting electronically-stored information (ESI), electronically de-duplicating the data, then posting it for attorney review in, what was then, a select number of web-accessible document review platforms. The author later notes that many in the fledgling industry anticipated that cost-conscious corporate entities would eventually replace law firms as the direct clients of these providers. Further, experts also projected that software manufacturers or developers, along with large tech-services companies, would soon begin to build e-discovery-related functionality like in-place preservation and issuance of litigation holds in their products. Nearly 13 years on, now, and it is hard to decide what is more interesting about the article—the serious accuracy of the predictions, or the amount of time it took them to come to fruition.
In January 2019, Zapproved LLC—interestingly, a company whose product line and core competency grew directly out of the trends predicted in that Wired article—noted in “The Future is Now: Predictions for Corporate E-discovery in 2019,” two very significant trends that will have a lasting impact on the e-discovery provider business model that evolved out of the early 2000s: corporations will be more diligent about data deletion; and corporations will continue to move more of their e-discovery tasks in-house. The primary drivers noted are not new—costs of maintaining, collecting and preserving ever-growing volumes of data, coupled with the risks and implications that loom with sanctions for any number of ESI-related pitfalls. These trends will have four major impacts on law firms and e-discovery service providers:
A Tighter Talent Pool
As technology professionals become more experienced with e-discovery-focused features like Microsoft Office 365’s E5 enterprise licensure, Mimecast or Google Vault in the Google G Suite, their capabilities and experiences will be highly pursued by companies with resources and budgets to absorb and foster that talent. Further, for veterans of the e-discovery industry who have ridden successive waves of the vendor-driven, then the in-house law firm-driven, and now back again to the vendor-centric business models for e-discovery, the longevity of positions in larger corporate environments that can offer a stable pool of resources and benefits may become an overwhelming lure.
Less Reliance on Trusted Expertise
While the overarching set of services attorneys provide their clients, with respect to the nuances and obligations in the nation’s rules of civil procedure and regulatory measures will never completely diminish, the exclusivity of attorneys’ guidance related to the nexus of technology and legal issues will certainly decrease as software features continue to mature and expand in functionality. As noted in a January 2017 report on the results of the Inside E-Discovery & Beyond survey by BDO Consulting, 56 percent of in-house counsel respondents to the American Legal Media-conducted survey cited the courts as their primary guidance on e-discovery matters. Attorneys, in-house e-discovery staff, and external vendors will continue to lose ground as the primary trusted advisers to their corporate clients—this can be good news for attorneys who can turn more focus to being counselors to core legal issues but may result in further downward pressure on price points as vendors’ roles get limited to carrying out rote, commodified processing tasks.
Driving the Industry to the Left … of the EDRM
In light of these shifts, anticipate that expertise and certifications in information governance, data privacy and data security will begin to replace e-discovery-focused skills. In 2015, the leaders and contributors at the EDRM rolled out the Information Governance Reference Model in recognition of the need for organizations to better control the “three vs” of corporate data—volume, velocity and variety. This model draws an even tighter stricture around the cyclic and iterative nature of data management depicted in the EDRM, while also working to establish the key organizational stakeholders that must be involved in any information governance initiative for it to be effective. But, do not be so quick to identify the key motivator for these stakeholders to be financial—many corporate general counsels have cited the courts as the primary impetus to shore up corporate data management policies and procedures.
E-Discovery Software Adapts to the Changes
One bright spot in this sea of change is that many e-discovery software solutions on the market today are also adapting and incorporating more information governance-related features into their platforms. Relativity has fleshed out its legal hold application to now facilitate in-place preservation holds—and, coupled that with the ability to link directly to an organization’s Office 365 instance. The ESI processing and investigative platform NUIX has bolstered its position and that of their partner network’s relationships within corporate legal departments as evidenced by their advocacy for the “four pillars” of effective in-house e-discovery management. Their claim is that the interactions and supporting workflows between technology vendors, enterprise legal and IT departments, service providers, and outside counsel are the pillars and foundation of sound information governance and e-discovery policy.
Change and upheaval have been consistently present in the legal technology space, particularly since the 2005 implementation of the first updates to the Federal Rules of Civil Procedure meant to specifically address e-discovery. Just a year after that, Wired runs its article on the burgeoning e-discovery service industry. Whatever forces conspired to hamper the development of technology and expertise to embrace the trends forecast by the technology publication nearly 13 years ago, there is no denying that those forces have given way to the advancements necessary to bring the predictions to bear. Law firms and forward-thinking business people in the e-discovery industry will inevitably adapt to these trends, too—but it will be those leaders and organizations that invest early enough in the evolution of the e-discovery function that will still be successful when the next wave of changes arises.
Kyle Campbell is the director of litigation support at LOGICFORCE, a leading technology consulting firm serving the legal industry. He has nearly 20 years of experience in all facets of the industry, including e-discovery software development, strategic business consulting with an emphasis on e-discovery and litigation support and working in-house with law firms and e-discovery service providers.
Reprinted with permission from the “ISSUE DATE” edition of the “PUBLICATION”© 2019 ALM Media Properties, LLC. All rights reserved.