The overarching theme for 2015 in ediscovery will be continuity. It is highly unlikely that the market will develop game-changing, net-new ediscovery innovation, but – as is the trend with all technological shifts – some of the early advancements are now becoming normal, familiar processes. Ediscovery companies are competing to take their powerful technologies and deliver them through intuitive solutions fine-tuned for broad market consumption.
Along with advancing solutions, 2015 will also see new, more advanced areas of risk. Data security, privacy concerns, social media, and mobile data have taken center stage – for good reason – and made a big impact for ediscovery. Both expertise and technology have begun to rise to meet these needs.
1. Predictive coding cases
The 2012 da Silva Moore ruling issued by the U.S. District Court for the Southern District of New York is now almost three years behind us. U.S. judges have been proactive in suggesting predictive coding as an accurate means of culling documents (FDIC v. Bowden, 2014 WL 2548137 (S.D. Ga. June 6, 2014) and approving its general use even mid-stream (Bridgestone Americas Inc. v. Int'l Bus. Mach. Corp., No. 3:13-1196 (M.D. Tenn. July 22, 2014). But as always, courts have exhorted parties to cooperate and when predictive coding was a unilateral decision departing from agreed-upon ESI (Electronically Stored Information) protocol, the court required manual review (Progressive Cas. Ins. Co. v. Delaney, No. 2:11-cv-00678-LRH-PAL (D. Nev. May 19, 2014). 2015 will see more predictive coding cases decided, and more definition will come, especially around the area of attorney-client privilege. Some proponents of predictive coding are lobbying for a sweeping, landmark predictive coding decision, and predictive coding is now prevalent enough that its intersection with the inadvertent production of privileged information is just a matter of time.
2. Proportionality amendments to the federal rules
The Judicial Conference of the United States approved the proposed amendments to the Federal Rules of Civil Procedure last year, and if approved by Congress, they will go into effect in December 2015. Two amendments are of particular importance: Rule 26, which will be amended to enumerate a number of proportionality factors that apply to evaluating the scope of discovery, and Rule 37 sanctions, amended to punish failure to take reasonable preservation measures. These amendments will cause a lot of buzz, as both the plaintiff and defense bar will seek ways to broaden or constrict discovery accordingly.
3. Slow impact
But despite the buzz, the real changes on proportionality will be slow to arrive, partially because the Rules will not be confirmed until December and partially because many of the best practices and efficient measures contemplated by the amendments are already in place. Magistrates will begin to interpret the Rules in discovery disputes with the overall interest of efficiency, and like any other new law, it will take some time for the right opportunity to set precedent in interpreting the amended Rules. So while many articles may be written and interviews given on the topic, the business of discovery will continue as usual, until a federal court adopts an unusual approach in interpreting the Rules that forces the issue. Most counsel would be wise to wait and see, unless your litigation docket puts you in a position to get creative and leverage the new Rules.
4. Cybersecurity and data breach
Federal movement on cybersecurity is trending towards extending the strict U.S. regulation seen in health and financial sectors to any regulated industry, resulting in cases weighing the varied privacy interests against discovering relevant, admissible evidence. Irrespective of legislative action, corporate counsel will be required to strike the precarious balance between safeguarding data and discovery obligations in litigation.
5. New solutions in ediscovery
New entrants into the ediscovery game, especially startups, will have an immediate impact on the way ediscovery technology and services are consumed, especially for small- and medium-sized markets. At minimum, the wider adoption of advanced analytics in ediscovery will continue. Corporate counsel should pay heed to the trend of ediscovery moving towards information governance. Microsoft's acquisition of Equivio, and its stated vision for it, signals part of that shift. Other big players' entrance into the market indicates that there is still a lot of room for improvement, and a new generation of tools on the horizon.
6. Managed services
Managed ediscovery services continue to grow in breadth and sophistication, especially as attorneys are being required by courts to increase their technical acumen in ediscovery. If your company and your outside counsel are not the exceptional case of having massive scale and resources dedicated to ediscovery, you will invariably need some help. Moreover, it may be to your benefit to transfer some of the risk to qualified industry experts.
7. Mobile and social media ediscovery tech
Collection and preservation technology will go more mainstream when it comes to mobile and social media data. For corporate counsel with BYOD policies, things will get extra hairy. However, solutions and new decisions will provide some guidance as these sources of data become more discoverable and relevant in litigation.
8. New sources of data
Social and mobile data sources are not the end of nontraditional sources of ESI, however. Even more new categories of discoverable data will begin to show up, especially in response to IoT (Internet of Things) advancements, creating new challenges with data collection and review.
9. Information governance
Some ediscovery approaches are focusing more on information governance workflows, ways to get from collection to production without a lot of intermediate steps. This shortcutting of the EDRM (Electronic Discovery Reference Model) may prove helpful and instructive for some corporate legal departments with substantial investment and best-in-breed tools.
10. Cross-border discovery
Cross-border privacy issues and jurisdictional differences will continue to complicate ediscovery, without framework for resolution outside of regionalization. Can a multinational corporation effectively put data out of reach for U.S. discovery by relocating the data (or even some of its operations) to a foreign affiliate? Is international forum-shopping a legitimate course of action, especially for global companies that legitimately have operations running across the globe? These are difficult questions that will require substantial expertise and global partners to address.
Reprinted with permission from the Association of Corporate Counsel 2015 All Rights Reserved