What's the Good News for eDiscovery in 2009?

by JulieLaboe

Wow, it’s already 2009 and everyone has already made their “2009 eDiscovery predictions” and those predictions have already made their way around the web. So what’s the good news about eDiscovery? The Industry is maturing which is causing standardizing which leads to a reduction in costs and new and better technologies. Here are the two main themes, (1) Companies (clients) are realizing that they have to take proactive measures in-house both as a smart business practice but also in anticipation of litigation. This proactive approach makes the ability to locate and supply eDiscovery when requested much more efficient and less costly; and (2) Lawyers and law firms are continuing to attain a better level of competency with eDiscovery and hopefully will do so long before they and their clients venture into the litigation arena.

(1)  Companies (“the Clients”) are becoming more proactive:

Albeit learning the “hard way”, companies are learning that it is unrealistic to hold their outside counsel wholly responsible for eDiscovery litigation costs if they haven’t taken the proactive measures in-house themselves. Best practices are the type of prevention and preparedness that has been the “white elephant” in the room for the past few years. But any company who has been drug through the “litigation eDiscovery mud” will tell you this is the most important step in cost cutting measures and should become part of your business practices. In Sonya Siger’s blog, 2009 Predictions and Trends (http://ralphlosey.wordpress.com/2009/01/01/2009-predictions-and-trends/) she talks about “Defensible processes”. Processes or best practices are only defensible if they are outlined in writing by the company and the company can show that they follow these best practices. This is not outside counsel’s responsibility because it begins before litigation is ever commenced. In a December 11, 2008 press release, Dean Gonsowski, vice president of EDiscovery Services, Clearwell Systems said, “As enterprises increasingly treat e-discovery as a business process, we will see a shift toward methodologies that are repeatable, standardized and measurable.” Most companies agree that this is something they need to do but many don’t know where to begin or what steps are involved. Therefore, we here at LTB will be offering a weekly blog series, “LTB Prevention and Preservation” that will describe these steps and help you get started. Contributing to the weekly blog series will be experts who have been through this with their own company or those who are experts in the technologies themselves.

(2)  Competency Level of Lawyers and Firms:

It’s been made clear through blogs, articles, judge opinions, and list servs that part of the frustration experienced in the eDiscovery arena has stemmed from intelligent lawyers who just haven’t put much thought or stake in eDiscovery and seem to ignore the way technology affects practically every aspect of life. This sentiment was illustrated by Sonya Siger in her blog, 2009 Predictions and Trends (http://ralphlosey.wordpress.com/2009/01/01/2009-predictions-and-trends/. She stated, “I think Ken Withers speech at Georgetown’s Advanced eDiscovery Institute this November was spot on when he suggested that there are too many lawyers who think they know how to litigate in this “electronic” day and age. They may know how to litigate, but they don’t know how to find the information, review it effectively, and keep out privileged information in a cost effective way. Competence - in knowing where to look for information, what types of information, how to analyze it, etc. - are all skills that lawyers (or someone on their staff or team) need to develop in order to be truly competent. You may not find all of these skills in one person, but surely you can assemble a team to be competent in all of these areas.”

For example, generally knowing the power of email, would you really choose not to use it in practice? Do you think documents like email can be that beneficial in practice but not in litigation? Would you use a program other than one created for email for your own business use? Given the numerous attachment levels that can exist in email you have to be sure to use the right programs for handling them for litigation.

I’ve had attorneys receive data on a hard drive that they had asked for in discovery requests and then couldn’t use because it was stored in a proprietary format. Now first of all this is eDiscovery so know what you’re asking for before you ask for it. The opposing party is certainly at an advantage if they know more about what you’ve got than you do. Second, get educated about what your client has, what you think the opposing party has, what technology you’re going to use when you get it, and how you are going to review it.

Part of educating yourself is generally understanding how to get the relevant data you want from stores of data. This is where you’ve probably heard about “keyword searching” and “concept searching”. I think the reality of searching for relevant data is summarized in this comment by Jeff Schott, Business Development Manager of The Digital Group, “Personally I do not believe that any one technique [for searching eDiscovery] can be recommended as the singular approach or that the human factor should be or can be completely removed. I agree…that technologies should be utilized to minimize the number of documents and decisions that have to be manually handled.” So once you’ve received the right universe of documents it’s a combination of search techniques that will divulge the data for which you’re looking. Some of the techniques that may be used between you and the client are conceptual, clustering, parametric, scoped, and de-duplication.

As technology continues to become more sophisticated so will the searches required to locate the data you need. So if you haven’t already, you will be hearing about Enterprise Searching. Enterprise Searching, like that offered by The Digital Group, is the wave of the very near future and is something clients and law firms alike have to become educated about. Jeff Schott of The Digital Group said, “Enterprise search is the present and future of a well rounded approach to information retrieval in E-discovery. The components that comprise an Enterprise Search Strategy are going to expand at a tremendous rate over the next several years as emerging technologies give way to unprecedented types of analysis. Imagine being able to categorize and review tens of thousands of documents within a case and collate them based on emotional tone and not just data relevance.” 2009 is the year to become proactive instead of continuing to be reactive.