3 eDiscovery Trends to Watch in 2017

Andy Parrish, Director of Client Services

Rapid-transformation continues to tell the tale of eDiscovery in the beginning of 2017. While it might seem as though the evolution of the industry is slowing down, the world has not seen anything yet. More technologies are entering the mainstream that have direct implications for discovery, litigation, and corporate data management.

Let’s take a moment to check out some of the biggest trends to watch in 2017.

  1. Technology-assisted review moves further into the mainstream

Technology-assisted review (TAR) has been a quiet giant for years now, with some courts accepting predictive coding-based discovery and others not. One consistency, though, is that the nation’s justice system continues to move closer toward a more standardized perspective on TAR.

Consider these very telling occurrences and decisions:

  • Nolan Hulburt argued that the U.S. District Court for the Northern District of California’s decision to not compel a defendant to use TAR despite the demands of the plaintiff sets strong legal precedence. Both parties will need to consent to TAR-enabled discovery.
  • Pressure is rising overseas, as McCann FitzGerald reported that the United Kingdom has consistently proven that its courts will make the decision of whether to use TAR or not for opposing parties if they do not come to an agreement on their own. The firm noted that more entities in the U.S. are being pressured to use predictive coding as well.
  • TAR is no longer some scary, completely uncharted technology. It’s been tried and tested, and when managed by professionals with the right skill set, can be powerful. Mayer Brown pointed out that TAR’s cost savings have become too much to pass up, especially considering the rise in success rates.

You will hear plenty of people say that attorneys are being replaced by machines, and that eventually there will be no need for any humans at all. Do not believe that. Remember, the operative word in TAR is “assisted,” meaning that inside and outside counsel need to be paying attention to the service providers they are working with in predictive coding-related discovery.

  1. The IoT sneaks up on the legal industry

By now you have surely heard of the Internet of Things, which is used to define a world in which every device, appliance, and gadget is connected to the web. Because the relevant devices are increasingly used for commercial purposes, they are generating valuable and somewhat risky data. They are also likely to become the next challenge from a discovery perspective.

Here are a few matters to keep on the radar in 2017:

  • International Data Corporation estimated annual spending on the IoT to expand at a compound annual growth rate of 15.6 percent between 2015 and 2020, reaching $1.29 trillion by the end of the study period.
  • Regulations covering the IoT are barely existent in the United States. The Hill reported that, because the government does not have a great understanding or definition of the movement, it has struggled to write proper policies. The IoT’s novelty also means that very little legal precedence is available.
  • The American Bar Association’s Maureen O’Neill argued that the eDiscovery and legal industries are going to need to create strategies to handle the metadata on IoT devices, and stay prepared for the trend’s implications for dispute management. She also noted that courts really need to get moving on setting standards to follow.

Perhaps the best way to understand the potential implications of the IoT is to look back at BYOD and the entrance of mobile devices into the workplace. It did not take long for mobile devices such as smartphones and tablets to become some of the most challenging items in discovery, as well as some of the biggest sources of corporate and legal risk.

Now, think about how there will be exponentially more devices as the IoT gains steam, all generating data, very little of that information being in standardized formats, and plenty of it being pertinent in lawsuits. Attorneys and eDiscovery professionals need to start setting standards for managing the IoT as soon as possible, as 2017 is expected to be a banner year for the trend.

  1. Privacy, security, risk management

Between international legislative overhauls that took place in 2016 and the growing fears among American businesses, legal entities, and others, security, privacy, and risk management are likely to be major points of focus in 2017.

Here are a few key stories to keep in mind:

  • The 2016 American Bar Association’s Legal Technology Survey Report found that 25 percent of law firms with either 10-49 or more than 500 attorneys experienced a data breach. Downtime and a loss of billable hours were among the most common damages.
  • The Ponemon Institute’s 2016 Cost of Data Breach study, conducted in conjunction with IBM, estimated the average cost of a data breach to be $4 million, and that figure continues to rise.
  • Bloomberg BNA pointed out that the E.U-U.S. Privacy Shield legislation that replaced Safe Harbor last year will come with substantial impacts to data management and transfers in the U.S. and abroad. The news provider noted that the General Data Protection Regulation is still yet to be completed, and will further increase the complexity of international and domestic privacy protection rules.
  • Hindered data integrity is getting expensive as well. CloudNine’s Doug Austin explained that spoliation comprised 38.7 percent of cases researched in a recent study, and that sanctions for the offender have gone as high as $3 million.

From a risk management perspective, every law firm, consultancy, or other type of entity involved in legal technology needs to keep their sights set on optimizing their security and privacy frameworks to survive. A data breach can be damaging for even the smallest mom-and-pop retailer, so just try to imagine what that would do to the image of a high-powered law firm or major corporation.

Expect law firms and inside counsel to become more heavily reliant upon third-party vendors and service providers to improve their data privacy, security, and risk management performances this year.

Concluding thoughts

The past couple of years have been exciting for the eDiscovery and legal tech arenas, and many of the trends that caught all of us off-guard are now beginning to balance out. These three will likely evolve and transform even further in 2017, and only those that stay one stroke ahead of the changing tides will be consistent winners in litigation proceedings.

Keep your ear to the ground and nose to the grindstone, and remember that we are here to help with any of your legal tech and litigation support needs. If you need support for risk management, digital forensics, eDiscovery, document hosting, regulatory compliance and more, give our team a call.”