New Gibson Dunn Year-End Electronic Discovery and Information Law Update

Each year Gibson Dunn comes out with a compelling year-end electronic discovery and information law update.  Essentially the report looks at trends in the electronic discovery marketplace, case law and notable sanctions.  They boil down the volume of case law and compare those trends with historical averages.  Below are the readers digest version of the findings along with some commentary;

  • Information Governance: Corporations in 2013 focused their efforts on beefing up their information governance programs, proactively developing and implementing systems and protocols for avoiding  the e-discovery pitfalls of the past.

We are definitely seeing increased attention from companies in proactive governance planning.  This weekend I spoke to the General Counsel of a major retail organization and he was very pleased with the forensic group they recently built internally and some of the proactive governance planning taking place within the corporation.

  • Predictive Coding/Technology Assisted Review: Predictive coding is being used by some but unclear by how many and to what extent to limit costs of attorney legal review.

My guess in 2014 is that we will see an upraise in predictive coding utilization by 30% to 40% of hosted cases.  The burden falls on us as vendors. Vendors like HAYSTACKID have to do a better job articulating the benefits and cost savings to in-house and outside counsel.  We need to show real life case studies comparing technology assisted review versus contract attorney review, methods on how to appropriately approach opposing counsel regarding the utilization of predictive coding and understanding and applying sampling to reach appropriate or agreed upon confidence levels and confidence intervals while utilizing assisted review.  Once that message is articulated you’ll see higher adaption rate.

  • Broken System:  Counsel are becoming increasingly vocal–and rightfully so–about what they perceive as unreasonable burdens imposed by a “”broken system.””

Can’t add much more color here.  It’s great to see a seasoned ediscovery attorney in action kick out certain discovery requests.

  • Data Security:  With the recent increase in high-profile data breach incidents the result is a major concern of individual’s records at risk and the potential liability of litigation.

The big Cyber Security vendors are gearing up for implementations and what will likely be a great year financially for them.  In the past, data collection and legal hold technology was the entry point in conversations with Corporations.  Not anymore.  Cyber Security will be the forefront of the conversations and electronic discovery and forensic behind the fire wall tools will be almost secondary.

  • Social Media & Personal Devices:  over the past year courts have issued decisions regarding the preservation and production of social media, text messages, and data contained on employees’ personal devices.  In fact social media evidence played a key role in approximately 88 published cases in the month of September 2013 alone.

88 published cases in September alone is a pretty significant number in my opinion.  From a service provider perspective we’ve seen a major upraise in social media collections along with more and more requests for text messages, personal devices etc.  There doesn’t seem to be much flexibility from Judges when it comes to business records.  The viewponeA business record is a business record regardless of media.

  •  eDiscovery Sanctions:  Overall, Sanctions not as significant in 2013

This finding was a little surprising.  I would be interested to see trends on motion to compel discovery and discovery related issues.  That I think is on the uprise.