Is eDiscovery Adaptability Stagnant?

The guys over at the eDiscovery Journal (eDJ Group) are ringing in the New Year with a bit of a pessimism toward the overall trends in the eDiscovery marketplace.  In a blog article written by Barry Murphy 2014: Time to Take a More Realistic Look at the State of eDiscovery, he cites a marked lack of progress over the last decade to fully address the dynamic nature and evolving burdens of eDiscovery in corporate infrastructures.   In part this pessimism is due to some of the most recent eDJ market research conducted in the fall and winter of last year.  Results found that “most organizations suffer from misaligned incentives for the stakeholders involved.”  Even George Socha is poo-pooing organizational eDiscovery adaptability saying, “we are having the same conversations about eDiscovery today as we were having in 1993.”  Ouch!  Was Z Print even around in 1993?

I’m an optimist, but I’m an optimist who takes his raincoat ~ Harold Wilson

I have zero research to back my claims but I have to believe we are talking steps forward in eDiscovery.  Maybe not leaps and bounds but my sniff test alone tells me we are indeed making progress.  Look at the tremendous growth kCura the developers of Relativity have experienced over a very short period of time.  kCura has been ranked the 31st fastest growing technology companies in North America by Deloitte’s Technology Fast 500.   This is due in part to corporations looking to streamline their legal review by leveraging technology like analytics and technology assisted review (TAR) in addition to providing their outside counsel with a single review platform rather than the law firm using their house platform for legal review. The corporation is getting in the drivers seat and in my opinion this is a major step in the right direction.

Another prime example is the attention I am seeing amongst outside counsel attorneys regarding proper steps in data preservation and collection.  A few years ago outside counsel could care less how data was collected.  Not the case today.   This could be due in part to case law with sanctions such as Green v Blitz which resulted in a $250,000 sanction in a fox guarding the hen house scenario.  It could also be due to the fact that outside counsel does not want to have their clients deposed on data collection procedures.  Today we are having conversations about data mapping, legal hold best practices and metadata preservation.  These conversations were unheard of 5 years ago.

If I’m on the course and lightning starts, I get inside fast. If God wants to play through, let him ~ Bob Hope

With that I will take my rose color glasses off.  The eDiscovery market is not all sunshine, rainbows and unicorns.  In my opinion it’s not so much as corporate adaptability in fully addressing eDiscovery but more so an overall lack of talent.  How many corporate clients in the United States have deployed an enterprise eDiscovery tool only to see it become shelf-ware?  Maybe the stakeholder who brought it in-house left the organization?  The issue is an overall lack of talent in running the technology.  Once the talent pool gets deeper and tools are easier to utilize, that’s when you’ll see an increase in adaptability.  Managed service providers who can step in now, play through and bridge the gap between the corporation and outside counsel will continue to be the leaders in this marketplace filled with snails pace adaptability.