Technological Advancements in e-Discovery

Litigation support managers are pleased by the benefits brought to their department when using self-service models. When supported by professional teams with in-depth e-discovery expertise, this low-cost, high-value technology allows the department to better manage limited internal resources. Costly head count and the attendant management and training burden can be eliminated in favor of using the service provider's expert staff on an as-needed basis. Further cost savings can be achieved by forgoing the infrastructure needed to run multiple software solutions. Administration of license fees and workarounds to deal with the data volume limitations they impose become a thing of the past.

Moreover, a self-service model provides flexibility and increased control of the e-discovery process via self-ingestion of custodian data. These new self-ingestion capabilities allow users to conduct targeted data collections in the field and upload the data directly to the cloud solution, minimizing the business disruption of more traditional collection methods. Users can then rapidly access fully processed and indexed data for search, review and production, leaving behind time-consuming and risky data transfers between multiple point solutions. With a single platform in the cloud, users are maximizing their budgets and client satisfaction. While only a handful of vendors are currently offering self-service solutions, we expect to see more e-discovery players announce offerings in the months to come.

Cross-Matter Management

Traditionally, e-discovery has been conducted on a matter-by-matter basis, even though cases frequently involve the same custodian data. As a consequence, organizations are paying duplicate costs for identical data to be processed, reviewed and analyzed in each new matter. In a 2012 RAND Corporation report, review costs and processing costs consumed approximately 73% and 19%, respectively, of the e-discovery expenditures used in the cases of their study. See, “Where the Money Goes,” http://bit.ly/I2zFvE.

The matter-by-matter method of discovery also increases storage costs each time a new copy of the data is created and results in the dispersal, like seeds blown in the wind, of corporate information assets to multiple vendors managed by outside counsel. According to a 2011 Gartner report, enterprise data will continue to grow by more than 40% a year, meaning there is no end in sight to the data volume problem. (See, “Predicts 2011: Storage, a Thicket of Digital Life in Evolving Internet and Entwining Storage Landscapes,” http://bit.ly/TFgw4o.) As costs associated with e-discovery continue to rise, there is growing pressure on both legal and IT departments to implement more cost-effective solutions. Over the past year, one new method that has risen to meet this demand is cross-matter management.

Unlike the familiar matter-by-matter model, cross-matter management addresses the overlaps between custodians, date ranges and legal issues through the reuse and repurposing of custodian data and attorney work product. Once processed and reviewed, all data, including metadata and attorney review designations, are saved to a central repository for use in future matters. When a new matter involving the same custodians arises, only the new information is processed and reviewed, significantly reducing hard and soft costs in these expensive EDRM segments and ensuring that there are no redundant copies to store.

In addition to reducing storage requirements, cross-matter management has other peripheral benefits. The business disruption caused by a corporation having to constantly re-collect the same custodian data can impact the ability of the organization to be efficient in its day-to-day business dealings. By limiting the number of times data must be moved and stored outside the corporate firewall, this method helps to ensure the integrity and security of sensitive corporate information assets. Moreover, reducing the number of copies of data means better access and security control.

Technology Assisted Review

Technology assisted review (TAR), especially predictive coding, is in the e-discovery limelight. While there have been significant e-discovery advancements over the years, nothing has generated as much debate, or resulted in as much fretful hand-wringing, as TAR. Everything from its reliability to whether or not it is court-approved continues be a source of tension among enterprises, law firms, vendors and the courts. While TAR borrows from well-accepted
strategies of the information science world in order to lower costs, improve accuracy, and increase the speed of document review, it has also been met with surprising resistance.

This TAR-induced fretting recently came to a head with Magistrate Judge Andrew Peck's ruling in Da Silva Moore v. Publicis Groupe et al., 11 Civ. 1279 (S.D.N.Y. 2012), requiring the parties to move forward with an e-discovery protocol that included the use of TAR. (A PDF of the Opinion and Order can be found at http://bit.ly/IialKX.) The ruling was unprecedented in this requirement, and sparked a firestorm across the industry. While many have touted it as the court's accession to the inevitable, others, including the plaintiffs in the case, have decried it as the end of reliable e-discovery. In their appeal to overturn Judge Peck's ruling, the plaintiffs argued: “Judge Peck sets a dangerous precedent that is likely to deter future litigants from even considering predictive coding, lest they be bound by a protocol that contains no measure of reliability.” Although the plaintiff's appeal was denied, Judge Peck has subsequently issued a stay of discovery on other grounds, allowing this reality show to take a break while important issues regarding TAR continue to be discussed.

Despite the ruckus, TAR remains a viable solution to a growing problem ' the skyrocketing cost of document review. Contrary to popular media hype, TAR does not herald the end of human review. Indeed, all TAR systems are designed to combine the unique strengths of humans and computers. Humans excel at critical analysis, creativity and making complex decisions about documents, while machines excel at performing repetitive tasks, making mechanically precise decisions and storing and accessing vast amounts of information. TAR systems maximize these respective strengths by leveraging the human review input to provide data points
to enhance machine calculations.

Successful TAR implementations do not differ significantly from
familiar e-discovery best practices. Organizations need to understand the technology, use a well-documented process, and perhaps most importantly, clearly delineate the method for measuring accuracy. One of TAR's greatest assets is the enhanced ability to measure review accuracy. Historically, it is fair to say that the majority of human document reviews have been performed with mere lip service paid to issues of quality control. With TAR, the document review process can proceed with greater transparency about quality and cost.

Recommind, Orcatec and Equivio are among the vendors offering technology assisted review.

Social Media

If it hasn't happened yet, questions about social media in litigation, as well as regulatory and internal investigations, will make their way to the IT department. As more content is generated across online communities like Facebook, Twitter, LinkedIn, Yelp, Pinterest and YouTube, the significance of social media will only grow. Legal will soon be faced with questions like, “Was that employee's blog post a reflection of corporate views?” or, “Was that a corporate-approved Tweet just because it was generated during work hours?”

Even as social media grows in popularity, it presents one of the greatest e-discovery challenges for businesses and law firms. Unraveling the Gordian Knot of data management and ownership issue is occupying the minds of some of the industry's best and brightest. Content is generated in snippets ' a blog post here, 140 characters there ' by employees and on behalf of the business on computers, tablets and smartphones. Additionally, it is not just a single source of information to be managed, preserved and produced when an investigation or litigation arises ' it is multiple sources, with new ones springing up every day.

According to a 2011 report by the Sedona Conference, social media content is manifested in four typical scenarios:

1. A formal business presence based on a clear corporate objective;
2. Initiatives by employees in pursuit of legitimate business goals, which may or may not be officially authorized;
3. Personal use by employees on company property or even their own time; and
4. Third-party commentary related to a particular company, product or service.

“Chapter 8 – The Sedona' Conference Commentary on Social Media (Draft),” http://bit.ly/N3VkQz.

All of these instances bring their own unique rights and obligations with regard to privacy, confidentiality and discoverability. Even personal posts issued by an employee outside of the office during non-business hours could potentially be discoverable ' in an employment discrimination case, for example.

As in-house and outside counsel begin to recognize the growing imperative to make social media content available for discovery, they are encouraging their organizations and clients to implement clear social media policies as well as data preservation strategies.

Some e-discovery vendors are beginning to take steps to help businesses meet the social media challenge head on. X1 Discovery is an e-discovery platform devoted to tackling the challenges of e-discovery for social media. While X1 is the first platform dedicated solely to the preservation, collection and processing of social media data, other vendors in the e-discovery space are actively working to build solutions that will help legal and IT cope with the mounting challenges of this growing content medium.

Conclusion

Although the e-discovery market has matured significantly over the past few years, the space continues to evolve as enterprise budget constraints and emerging technologies create new demands. We expect to see new solutions continue to emerge as technology heavyweights enter the space through acquisition and new start-ups drive innovation in the market.

Even as the e-discovery market matures, we continue to see change driven by shifting economic conditions, the proliferation of data sources such as social media and cloud computing, and evolving legal standards. In response to these challenges, e-discovery vendors are developing solutions that are poised to shape the direction of the market. As legal and IT professionals, it is our duty to keep up with the ever-changing landscape of e-discovery technologies.

Self-Service e-Discovery

Corporations and their outside counsel have many technology options to choose from when developing a business process for managing e-discovery. Most recently, the pendulum is swinging from a reliance on multiple traditional software solutions (e.g., Law, Concordance, Summation, kCura) to cloud-based alternatives that provide a complete litigation lifecycle solution in a single platform. Additionally, the best cloud-based providers offer superior data redundancy and security with strategically placed co-location facilities and ISO/IEC 27001:2005 compliant data centers. In an era where data privacy issues are spotlighted and data breaches come at a high cost, users are opting for the enhanced security afforded by self-service models, bringing a sigh of relief from corporate risk managers.

Litigation support managers are pleased by the benefits brought to their department when using self-service models. When supported by professional teams with in-depth e-discovery expertise, this low-cost, high-value technology allows the department to better manage limited internal resources. Costly head count and the attendant management and training burden can be eliminated in favor of using the service provider's expert staff on an as-needed basis. Further cost savings can be achieved by forgoing the infrastructure needed to run multiple software solutions. Administration of license fees and workarounds to deal with the data volume limitations they impose become a thing of the past.

Moreover, a self-service model provides flexibility and increased control of the e-discovery process via self-ingestion of custodian data. These new self-ingestion capabilities allow users to conduct targeted data collections in the field and upload the data directly to the cloud solution, minimizing the business disruption of more traditional collection methods. Users can then rapidly access fully processed and indexed data for search, review and production, leaving behind time-consuming and risky data transfers between multiple point solutions. With a single platform in the cloud, users are maximizing their budgets and client satisfaction. While only a handful of vendors are currently offering self-service solutions, we expect to see more e-discovery players announce offerings in the months to come.

Cross-Matter Management

Traditionally, e-discovery has been conducted on a matter-by-matter basis, even though cases frequently involve the same custodian data. As a consequence, organizations are paying duplicate costs for identical data to be processed, reviewed and analyzed in each new matter. In a 2012 RAND Corporation report, review costs and processing costs consumed approximately 73% and 19%, respectively, of the e-discovery expenditures used in the cases of their study. See, “Where the Money Goes,” http://bit.ly/I2zFvE.

The matter-by-matter method of discovery also increases storage costs each time a new copy of the data is created and results in the dispersal, like seeds blown in the wind, of corporate information assets to multiple vendors managed by outside counsel. According to a 2011 Gartner report, enterprise data will continue to grow by more than 40% a year, meaning there is no end in sight to the data volume problem. (See, “Predicts 2011: Storage, a Thicket of Digital Life in Evolving Internet and Entwining Storage Landscapes,” http://bit.ly/TFgw4o.) As costs associated with e-discovery continue to rise, there is growing pressure on both legal and IT departments to implement more cost-effective solutions. Over the past year, one new method that has risen to meet this demand is cross-matter management.

Unlike the familiar matter-by-matter model, cross-matter management addresses the overlaps between custodians, date ranges and legal issues through the reuse and repurposing of custodian data and attorney work product. Once processed and reviewed, all data, including metadata and attorney review designations, are saved to a central repository for use in future matters. When a new matter involving the same custodians arises, only the new information is processed and reviewed, significantly reducing hard and soft costs in these expensive EDRM segments and ensuring that there are no redundant copies to store.

In addition to reducing storage requirements, cross-matter management has other peripheral benefits. The business disruption caused by a corporation having to constantly re-collect the same custodian data can impact the ability of the organization to be efficient in its day-to-day business dealings. By limiting the number of times data must be moved and stored outside the corporate firewall, this method helps to ensure the integrity and security of sensitive corporate information assets. Moreover, reducing the number of copies of data means better access and security control.

Technology Assisted Review

Technology assisted review (TAR), especially predictive coding, is in the e-discovery limelight. While there have been significant e-discovery advancements over the years, nothing has generated as much debate, or resulted in as much fretful hand-wringing, as TAR. Everything from its reliability to whether or not it is court-approved continues be a source of tension among enterprises, law firms, vendors and the courts. While TAR borrows from well-accepted
strategies of the information science world in order to lower costs, improve accuracy, and increase the speed of document review, it has also been met with surprising resistance.

This TAR-induced fretting recently came to a head with Magistrate Judge Andrew Peck's ruling in Da Silva Moore v. Publicis Groupe et al., 11 Civ. 1279 (S.D.N.Y. 2012), requiring the parties to move forward with an e-discovery protocol that included the use of TAR. (A PDF of the Opinion and Order can be found at http://bit.ly/IialKX.) The ruling was unprecedented in this requirement, and sparked a firestorm across the industry. While many have touted it as the court's accession to the inevitable, others, including the plaintiffs in the case, have decried it as the end of reliable e-discovery. In their appeal to overturn Judge Peck's ruling, the plaintiffs argued: “Judge Peck sets a dangerous precedent that is likely to deter future litigants from even considering predictive coding, lest they be bound by a protocol that contains no measure of reliability.” Although the plaintiff's appeal was denied, Judge Peck has subsequently issued a stay of discovery on other grounds, allowing this reality show to take a break while important issues regarding TAR continue to be discussed.

Despite the ruckus, TAR remains a viable solution to a growing problem ' the skyrocketing cost of document review. Contrary to popular media hype, TAR does not herald the end of human review. Indeed, all TAR systems are designed to combine the unique strengths of humans and computers. Humans excel at critical analysis, creativity and making complex decisions about documents, while machines excel at performing repetitive tasks, making mechanically precise decisions and storing and accessing vast amounts of information. TAR systems maximize these respective strengths by leveraging the human review input to provide data points
to enhance machine calculations.

Successful TAR implementations do not differ significantly from
familiar e-discovery best practices. Organizations need to understand the technology, use a well-documented process, and perhaps most importantly, clearly delineate the method for measuring accuracy. One of TAR's greatest assets is the enhanced ability to measure review accuracy. Historically, it is fair to say that the majority of human document reviews have been performed with mere lip service paid to issues of quality control. With TAR, the document review process can proceed with greater transparency about quality and cost.

Recommind, Orcatec and Equivio are among the vendors offering technology assisted review.

Social Media

If it hasn't happened yet, questions about social media in litigation, as well as regulatory and internal investigations, will make their way to the IT department. As more content is generated across online communities like Facebook, Twitter, LinkedIn, Yelp, Pinterest and YouTube, the significance of social media will only grow. Legal will soon be faced with questions like, “Was that employee's blog post a reflection of corporate views?” or, “Was that a corporate-approved Tweet just because it was generated during work hours?”

Even as social media grows in popularity, it presents one of the greatest e-discovery challenges for businesses and law firms. Unraveling the Gordian Knot of data management and ownership issue is occupying the minds of some of the industry's best and brightest. Content is generated in snippets ' a blog post here, 140 characters there ' by employees and on behalf of the business on computers, tablets and smartphones. Additionally, it is not just a single source of information to be managed, preserved and produced when an investigation or litigation arises ' it is multiple sources, with new ones springing up every day.

According to a 2011 report by the Sedona Conference, social media content is manifested in four typical scenarios:

1. A formal business presence based on a clear corporate objective;
2. Initiatives by employees in pursuit of legitimate business goals, which may or may not be officially authorized;
3. Personal use by employees on company property or even their own time; and
4. Third-party commentary related to a particular company, product or service.

“Chapter 8 – The Sedona' Conference Commentary on Social Media (Draft),” http://bit.ly/N3VkQz.

All of these instances bring their own unique rights and obligations with regard to privacy, confidentiality and discoverability. Even personal posts issued by an employee outside of the office during non-business hours could potentially be discoverable ' in an employment discrimination case, for example.

As in-house and outside counsel begin to recognize the growing imperative to make social media content available for discovery, they are encouraging their organizations and clients to implement clear social media policies as well as data preservation strategies.

Some e-discovery vendors are beginning to take steps to help businesses meet the social media challenge head on. X1 Discovery is an e-discovery platform devoted to tackling the challenges of e-discovery for social media. While X1 is the first platform dedicated solely to the preservation, collection and processing of social media data, other vendors in the e-discovery space are actively working to build solutions that will help legal and IT cope with the mounting challenges of this growing content medium.

Conclusion

Although the e-discovery market has matured significantly over the past few years, the space continues to evolve as enterprise budget constraints and emerging technologies create new demands. We expect to see new solutions continue to emerge as technology heavyweights enter the space through acquisition and new start-ups drive innovation in the market.