Five Daunting Problems Facing Ediscovery


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In the 1990s, ediscovery was in its infancy as legal and IT professionals were newly confronted with the production challenges associated with computer data. We have come a long way, and today ediscovery has evolved into a sophisticated area of law and technology. Learn about the most salient issues related to rules and technology, cost, technology assisted review, and case analytics.

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Five Daunting Problems Facing Ediscovery

  1. 1. 5 Daunting Problems in Ediscovery Presenter Date
  2. 2. Proprietary2
  3. 3. Discussion Overview  5 Daunting Problems in Ediscovery » 5. Rules and Technology are Always Changing » 4. Costs are Variable » 3. TAR is Underutilized » 2. Case Analytics Are Primitive » 1. Ediscovery is Transactional 3
  4. 4. 4 Daunting Problems in Ediscovery  In the late 1990s, ediscovery was in its infancy, as legal and IT professionals began to confront production challenges associated with computer data.  Today, look how far we have come. We now know ediscovery is here to stay – but the industry faces monstrous new challenges. » The ediscovery marketplace is not unified or simple » Technologies and methodologies are complex and varied » Organizations yearn for best practices and proven technology
  5. 5. 5 #5: The Rules and Technology are Always Changing  There is no rest for the ediscovery weary. Ediscovery variables are in a constant state of flux. » Data sources are increasing in number and complexity. IT professionals are constantly evolving the format on which data can live and how it can be accessed » The line between professional and personal is blurring. Companies are now enacting “bring your own device” (BYOD) policies and social media platforms are becoming commonplace. » Big data is becoming bigger data. Ten years ago, a single custodian generated hundreds of documents; today, it is not uncommon for a single custodian to generate hundreds of thousands of documents. Also, the trend of “cheap storage” enables organizations to keep larger volumes of data. » Rules governing litigation across the globe are constantly evolving. With differing types of legal systems, hundreds of countries and thousands of new laws being enacted annually, the sands of ediscovery are constantly shifting.
  6. 6. 6 #5: The Rules and Technology are Always Changing
  7. 7. 7 #4: Costs are Variable  In a world of shrinking budgets and growing ESI volumes, ediscovery professionals must do more with less. The ediscovery pricing landscape is defined by: » Varying pricing models and amounts that have dramatically changed in the last two decades. Nevertheless, everyone thinks ediscovery is still too expensive. » Impossible price shopping. Despite best efforts to compare ediscovery providers on a grid, it is difficult to conduct “apples to apples” comparisons. » Frivolous litigation activities driven by cost-shifting arguments. Litigation is often no longer about the merits of the case, but instead, lawyers are using costs as a weapon to play “gotcha” with their opponents. » Volatile ediscovery project parameters. Scope creep is commonplace, resulting in ediscovery budget overruns.
  8. 8. 8 #4: Costs are Variable
  9. 9. 9 #3: TAR is Underutilized  Technology-assisted review is endorsed by courts and will modernize review practices. But, lawyers remain reticent to leverage this technology. Why? » There is concern that TAR will replace the need for lawyers. Ediscovery professionals must understand that TAR will let both machines and humans do what they do best. Lawyers will still be involved in advocating for their clients, establishing the review process and evaluating the outcomes. » Legal teams are concerned about TAR defensibility. Though manual review is burdensome and inconsistent, legal professionals still depend on the manual method of review for most cases they encounter, citing defensibility concerns. » More hands-on training is needed. There is a plethora of literature and CLES available to teach ediscovery practitioners “what” TAR is, but training on “how” to best leverage this technology is limited. » The technology and best practices are not yet standardized. Standard terminology and methodologies for conducting a review using TAR are still emerging. Further, technology features across products vary drastically and comparisons are complex.
  10. 10. 10 #3: TAR is Underutilized  By 2016, as predicted by analyst firm IDC, big data will be a $24 billion market in 2016, rendering TAR all the more important for parties seeking to stay afloat amidst today’s sea of data. Lawyers must no longer run away! Source: Worldwide Big Data Technology and Services 2012–2016 Forecast, IDC (Dec. 2012).
  11. 11. 11 #2: Case Analytics Are Primitive
  12. 12. 12 #2: Case Analytics Are Primitive  Law firms and corporations are clamoring to understand their ediscovery data across multiple cases. Ediscovery professionals need more useful metrics to make better decisions that result in litigation management efficiency. » Volume analytics across cases » Collection and preservation information from current and past ediscovery projects » Search metrics that identify key terms and concepts » Production statistics that include the number of times a single document has been produced and volume of production data per custodian » E-mail analytics about a custodian’s social networks, time and date frequency and top subject matters » Spending totals per matter, per custodian, per file type and per location » Records of archived or deleted data
  13. 13. 13 #2: Case Analytics Are Primitive  Gartner reports that most organizations today use a reactive approach to the ediscovery process and struggle to manage their archived documents. » Metrics will provide the big picture view of an organization’s litigation universe to maximize predictability, affordability and defensibility. Source: Market Trends: Automated, Analytical Approaches Drive the Enterprise E-Discovery Software Market, 2013, GARTNER (Dec. 18, 2012).
  14. 14. 14 #1: Ediscovery is Transactional  The lifecycle of any innovation evolves from chaos to standardization. How can organizations make ediscovery practices more repeatable and predictable? » Corporations and law firms must stop relying on manual processes. Today, ediscovery practices are often invented and reinvented with each litigation matter. » Consistent resources need to be dedicated to ediscovery tasks. As teams become seasoned to collecting, reviewing and producing data, they will seek ways to eliminate inefficiencies. There is a need for technology and process to work together with ediscovery teams and programs. » Organizations need better cooperation between legal and IT. The teams responsible for ediscovery often function in a vacuum, managing information silos with temporary bridges and connectors between them. » Technology must be deployed to provide the backbone for process. Software drives standardization. Ediscovery standardization will not exist until teams are linked to consistent ediscovery and information management software platforms.
  15. 15. 15 All of these issues are symptoms of a larger problem: an erratic, one-off approach to ediscovery Ediscovery emerged in the legal space, but it must evolve into a business-focused strategic effort, tightly integrated with overall information management practices and comprehensive technology solutions.
  16. 16. Proprietary16