A Look Behind, A Look Ahead: Part Two - E-Discovery

What cases stood out in 2019, either for their rulings/results or the arguments made within them?

Joey Seeber: Rimini Street, Inc. v. Oracle USA, Inc., 139 S.Ct. 873 (2019). Although it largely flew under the radar, the Supreme Court ruled that e-discovery expenses under federal cost-taxing statute, 28 U. S. C. §1920, "do(es) not authorize an award for expenses such as … e-discovery expenses." It ends the decades-long chapter of indecision over the prickly questions of whether prevailing litigants can make their opponents pay their e-discovery fees — and if so, which ones.

What development that you expected to see in 2019 didn't pan out?

David Carns, Chief Revenue Officer at CasePoint: I was expecting, but didn't see, a viable replacement for CaseMap. The industry needs one, but nothing yet quite stacks up.

Joey Seeber: A measurable step forward by attorneys and judges in accepting the benefits of legal technology in practicing law. This was brought home to me when I attended the Eastern District of Texas Bench Bar Conference recently. In fact, we sponsored a panel at the conference on eDiscovery and technology, with superstars like Dave Lewis, Chief Data Scientist of Brainspace, and Dave Carns, Chief Revenue Officer of Casepoint. One attendee said, "You can't force technology on me." Another speaker on a separate panel said, "We are starting to see search terms, but they are not widely used." I was blown away.

What is your key takeaway from this year?

David Carns: There are a lot of newcomers to e-discovery, but partial solutions are not enough. The industry wants end-to-end solutions that don't involve stitching multiple applications together and transferring data between multiple tools to get the work done.

Joey Seeber: There was a tremendous amount of activity and noise in e-discovery this year. But there wasn't a lot of progress.

Turning to 2020, what do you expect to see next year? Important cases? Regulations? Trends?

Joey Seeber: It will be interesting to see how the new privacy laws affect a corporation's e-discovery requirements. Who is really benefiting here — the corporation or the human? Will these laws make e-discovery harder by making it easier for corporations to hide evidence? Will an employee's device be protected from opposing counsel by the privacy laws but not protected when it comes to employee misbehavior? I expect we will see litigation around this fairly quickly.

Tim Anderson, Managing Director, FTI Technology: E-discovery will undergo more evolution and change in the coming year. For one, we'll see more built-in e-discovery functionality among major technology providers like Microsoft, Google, Slack, Dropbox, etc., which will make governance and e-discovery across a range of platforms and data types easier. We'll also see more of a shift towards 'connect' versus 'collect' and 'enrich' versus 'process,' as lawyers look for ways to gain faster access to key insights. E-discovery teams will become more sophisticated in letting the data speak for itself, where it lives, as opposed to transferring it to a new location for processing and analysis.

Sarah Brown, Director of Marketing, Inventus: E-discovery sits at the intersection of two industries not known for diversity: legal and high-tech. Despite what can feel like major wins, statistics paint a bleak picture — most U.S. lawyers are white, managing partners are primarily male, and only 2% of partners in major firms are black; leadership at e-discovery companies has historically reflected this demographic. The next decade will see a major shift in focus for leadership and talent development at e-discovery providers as we join law firms and corporate legal departments in putting our money where our mouths are and deliver recruitment and retention programs that fight discrimination and actively recruit, retain, and promote women, minority, and underserved talent.

Robert Brownstone, Chair of EIM Group, Fenwick & West: 2020 will be the year that the irresistible force meets the immovable object. AI's ever-growing powers will not only continue to butt up against the GDPR and other international data laws but also come face to face with a litany of new U.S. states' privacy laws, including the CCPA and the regulations thereunder. The more that AI tools can seek, sift and gather, the greater the difficulty in responding to data subjects' requests for access, correction and/or erasure. And the more complicated will become key intersecting e-discovery issues such as collection and historically typical long-term non-anonymized preservation.

Cat Casey, Chief Innovation Officer, DISCO: E-discovery will continue to be bombarded by atypical data sources as ephemeral messaging, IoT device data, collaboration tools and app-based information becomes increasing relevant to investigations and litigation. Savvy providers must capitalize on advanced analytics and all the tools in their toolboxes to manage this explosion in terms of variety and volume of data. Advanced analytics will become increasingly the norm as linear approaches simply become untenable.

Stephanie Clerkin, Director of Litigation Support, Korein Tillery: Growth via acquisition will remain strong among e-discovery providers, especially between competitors. Factors such as changing privacy regulations, corporate legal insourcing, and pressure to reduce bills are pushing providers to move beyond traditional e-discovery and offer end-to-end solutions that cover the entire EDRM. Lawyers will reap the benefits of consolidation with streamlined operations and reduced costs, while legal technology professionals will see new specialized roles. Be cautioned: with consolidation, service and quality can suffer. Those providers who can continue to grow and innovate without sacrificing service and quality are positioned to thrive.

John Davis, co-chair of the E-Discovery & Information Management practice, Crowell & Moring: AI-driven deepfakes and fabricated evidence will come to the fore. With the rise of 'alternative facts' and distrust of evidence, there will be an increasing emphasis on validation and authentication. Expect the use of blockchain and defensive AI in the courtroom, boardroom and public arena to establish or raise doubt as to data integrity and authenticity.

Eric B. Evans, Partner, Mayer Brown: Two major trends will continue working themselves out: 1) Relativity's disruption of its existing vendor-based model; and 2) aggressive consolidation across the industry as private equity chases shrinking margins. With no clear winner in the race to replace Relativity as the default incumbent, we should expect to see rapid technical development of multiple platforms, focused especially on emerging data sources like Slack and other collaboration platforms. Service levels overall are likely to be flat or declining, given the churn created by M&A activity among vendors and investors and the reduced utility of Relativity skillsets given the tools uncertain future.

Brad Harris, VP of Product, Hanzo: Collaboration applications like Slack and Teams will rapidly replace email as the tool-of-choice internally, and as a result, organizations will experience a noticeable uptick in discovery requests for the production of ESI from such platforms. To address these dynamic, ad-hoc and complex collaboration tools, legal professionals will be forced to retool their playbooks and develop a new paradigm for discovery response.

Wendell Jisa, CEO, Reveal: E-discovery is no longer a domestic discipline. These days, companies of all sizes are expanding internationally, forging new relationships and acquiring customers all around the world. Any lawyers interested in long-term success in e-discovery should be prepared to work across borders and address the complexities that intensify at this level: regulations, scalability, costs, resources, and more. Technology — especially the cloud — plays an important role in this transformation, as it can help contain costs, provide a global infrastructure, navigate privacy laws, and make everything more efficient so that less resources are needed.

Sean Lynch, Director, Legal & Compliance Solutions, Ricoh Canada: The Federation of Law Societies of Canada has implemented a new rule requiring that lawyers undertake to understand technologies relevant to their practice areas. As analytics capabilities become table stakes for discovery and contract management, we believe that this change will drive more lawyers in an already early-adopter country to integrate more advanced solutions to improve their practice.

Chris May, Risk & Financial Advisory Principal and Discovery Leader, Deloitte: I feel more like a data management professional than just an e-discovery one anymore. To better manage massive volumes of data — including challenging unstructured data — while also reducing costs and risks, I expect more legal teams will consider alternative operational models and new technology investments for data management in 2020.

Mollie Nichols, Head of Technology-assisted Review, Hogan Lovells: Developing bespoke solutions will grow significantly in 2020, as clients discover that even a "near-fit," off-the-shelf solution isn't effective enough to keep pace with increasing data volumes, a growing number of disparate data sources, and new legal requirements impacting e-discovery, investigations, and legal operations. The most interesting (and useful) solutions don't necessarily come from the most interesting new technologies. Rather, they're cobbled together from existing technologies and techniques that haven't been used for legal, or that haven't been assembled in that particular combination. The key to this approach, of course, is having a highly skilled and creative team.

Anthony R. Petruzzi and Jeffrey C. Sindelar, Jr., Attorneys, Tucker Ellis: The increasing costs of e-discovery and the success of the 2015 Federal Civil Rules Amendments will accelerate state-level discussions of adopting "proportionality" into civil rules. This will promote a more unified implementation of proportionality concepts as courts and litigants work through any concerns that proportionality will prevent a party from obtaining needed discovery.

Ben Sexton, VP of E-discovery and Analytics, JND: The line between e-discovery and information governance will continue to blur. As more search, review and production functionality is baked into tools like O365 and GSuite, the traditional EDRM model will be transformed. More robust searching and analytics features will exist against data in-place, which will result in less data being collected and processed using third-party platforms. However, the total data footprint generated by corporations will continue to grow, so we could continue to see a net increase in ESI volume.

Dante Stella, leader of the Discovery Management and E-Discovery group, Dykema: Emerging privacy law will change how parties use predictive coding. "Privacy by design" principles limit non-consensual use (and disclosure) of personal information in legal matters to what is necessary — and only for as long as necessary. Predictive coding is focused on relevance to case issues — not the separate question of whether particular personal information is actually needed for the matter. Parties that plan to use predictive coding to make the major cut for production should carefully consider additional tools, new process controls, and remediation provisions in case management orders."

What is the one data source that will you think will trip up e-discovery platforms in the new year and why?

David Carns: Slack. Even companies that say that they support this application are only scratching the surface. The industry hasn't really had first-hand experienced with the complexity of Slack data in e-discovery, but I see it coming in 2020.

Joey Seeber: The telephone call. We can't see the forest for the trees.

How do you think the market for e-discovery tools will change in 2020? Will be there be consolidation?

Joey Seeber: The tools are always going to change, and of course you've got to be ahead of the competition if you are going to win. But the market is not about the tools, just like Nike is not about tennis shoes. It's about understanding the people. So, we spend a lot of our R&D efforts on understanding and predicting human behavior when it comes to their adoption and use of technology. It's amazing what a little hand holding can do to solve a problem.

What do you hope to see from change in the e-discovery industry in 2020?

David Carns: More widespread use of advanced e-discovery technology across organizations and verticals. The industry has come a long way, but there's a long way to go.

Joey Seeber: People are no longer turning to e-discovery careers because they couldn't make partner in a law firm. There is more opportunity than ever for tech-savvy, analytical attorneys who want to solve problems. If you think about it, it's one of the purest forms of practicing law that remains. So, I expect to see law schools finally getting on board that we need to be teaching our students more than the Magna Carta if they want to be viable attorneys in today's marketplace.

Is there a case or a regulation that you're watching for 2020?

Joey Seeber: It may be a tad bit premature, but we are on the cusp of seeing a change in what it means to "practice law" vs. "the delivery of legal services." Then the real Wild West begins.

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Steven Salkin, Esq. is the Managing Editor of Cybersecurity Law & Strategy.