As we gear up for 2012, its “out with the old and in with the new” or in the case of eDiscoveries, analyzing what worked well this year and carrying them over into the new year. Here is an attempt at predicting seven top eDiscovery trends in litigation and technological advances for 2012.
1. Social Media is here to stay.
There has been a substantial increase in electronically stored information (ESI) over the past few years. New varieties have emerged recently, such as cloud context, mobile to mobile communication, loose files, social media, structured files etc. More and more organizations are noticing that these types of ESI trumph file sharing through emails. Now this news can be a bit disheartening to companies that are afraid of change, but when dealing with eDiscovery requests it predicted that the social media trend shows no signs of fading.
2. Cost Shifting impacts the “American Rule.”
For decades the “American Rule” stated that parties need to pay for their own production costs. Well, now more and more courts are considering eDiscovery vendors as the “21st century equivalent of making copies.” It is predicted that in 2012 we will see an increasing amount of courts awarding winning parties their eDiscovery cost.
3. No more Data Hoarding!
Storing tons of unmanaged and unsupervised ESI has become increasingly dangerous when dealing with litigation risk. For organizations that have never or have rarely deleted files, cleaning up the digital home is important in minimizing liability.
4. Risk Assessment is a key component of eDiscoveries
With the advancement in software technologies, it has been more important for counsel manage their risk by deciding the various error/precision rates there could be. Software technologies have helped with statistical insight, allowing counsel to manage their risk and reward balance.
5. Expand to an International Mindset
International markets have begun to develop quickly and in some cases they are surpassing the U.S. Shifting to a more global way of practicing and thinking, particularly with regulatory compliance driven cases, will only benefit attorneys.
6. There will be a continued Maturation of the eDiscovery process
In 2012, Best Practices involving the corporate process will include regular status update meetings; managed time lines and progress; identifiable workflow and production requirements. When dealing with technology, mature organizations will continue to utilize central legal sources to support the discovery process instead of the standard informal management of cases. Numerous advantages to these processes will include a better system to manage the production of work.
7. Acceptance of Technology Assisted Review (TAR) continues to grow
Next year is predicted as being a pivotal year for TAR. Contrary to what the opposition thinks, TAR has proved to not only reduce costs, but yields more accurate reviews over the manual review with much less effort. Even though skeptics say it may not be legally defensible, it seems that it drastically aides in alleviating workflow with very little effort.