The information sources and services associated with electronic discovery are advancing at a rapid pace – increasingly rapid when compared to the early requirements and available tools. Changes in technology, services, cultural issues and the FCRP rules will continue to challenge the legal services industry to respond with cost-effective and legally serviceable solutions in a timely fashion.
Technology: The move to centralized, structured data sources, hosted by third parties and using advanced technologies presents more than simple technical problems associated with data collection, processing and review. Legal issues related to third party held data sets, data access and clear information identification are challenges without formal solutions at this time. De-centralized, non-structured traditional data sources (electronic files and messaging content) represent low density (yet possibly high value) data sets. Centralized data sources represent high value and high density discovery sources. Proper discovery planning – identifying key data sets and key entry points into redundant data sets - combined with effective presentation and advocacy will present opportunities for discovery cost containment.
Services: The legal services vendor market has experienced significant consolidation and cost pressures over the last 5 years. Current vendor examinations reveal fewer highly experienced (high cost) technical resources available for client support and fewer processing options. The profitability model requires standardized workflows for all projects with few deviations allowed. Less flexibility restricts legal teams’ ability to maximize discovery as a tool for litigation strategy. Additionally, as the industry becomes less flexible, new data types are being rapidly introduced into common use, representing increased risk that legal teams may miss key or critical data due to exclusions during collection or processing phases for electronic discovery.
Cultural: Large scale consumer related litigation exposes large information blocks about the litigation participants. Historically this exposure has been seen as a “cost” associated with participating in the lawsuit. Within the legal process and in general, protecting the/an individual’s personal information is becoming an increasing area of concern. Currently reflected in mandated information redaction prior to production, the redaction process is a requirement which must be accounted for both financially and procedurally in production format determinations and native form information delivery. Additionally, a litigation project is now commonly a global project with different regional discovery and privacy demands. Attempts to create single, global discovery document sets which satisfy all regional requirements is becoming more difficult. Finally, individuals are taking steps to secure their private information through various encryption methods (individual files, file sets, storage devices, communications). These encrypted data sources are commonly not addressed in litigation discovery efforts. As the encrypted data sets grow over time, containing high value data, solutions must be devised to include the information within the litigation process. Failure to properly plan, document and process such information or failure to comply with unique privacy requirements represents a significant risk to outside counsel.
Rules: The recent discovery rules amendments are compressing time frames provided for discovery and mandating specificity in discovery requests and discovery responses. When combined with growing information management complexity, tasks previously associated with litigation efforts should be addressed on an organizational basis, outside of specific litigation requirement. Legal teams have too little time available under the new rules for a “start from scratch” approach in a complex environment. Failure to be properly prepared with the required details and defensible discovery plan will result in less effective client advocacy.
The information management industry, in general, has enjoyed a long, stable period where common data management tools have been widely employed. Coinciding with the electronic discovery market conception and growth, the implemented tools are designed to handle this stable, relatively unchanging, data type set. The discovery industry easily accommodates Microsoft Office format documents, Microsoft Exchange messaging content and SQL format databases.
New tools, techniques and data storage designs – often based off of open source systems and customized by implementation site – will challenge the legal services industry to respond with appropriate solutions and legal teams to understand and effectively use the new data structures within the litigation environment. Challenges will be early and often in this new age of “Data Chaos.”