Top eDiscovery Trends That Are Here To Stay

I recently participated in an ACEDS webinar alongside legal tech expert Ari Kaplan and moderated by Sonya Judkins of ACEDS and T-Mobile for a conversation about eDiscovery trends in legal departments and law firms. The webinar was ACEDS’ second-most-viewed webinar of all of 2022. Kaplan reviewed the results and implications of his most recent E-Discovery Unfiltered report, while I discussed the benefits of establishing eDiscovery maturity, based on the Enterprise eDiscovery Maturity Model that I developed for Casepoint. 

Among the many insights arising from our discussions, a few trends and pain points really resonated — not only because they’re causing justifiable concern among legal professionals, but also because organizations can effectively address these issues immediately using the right technology platform and our proven framework for eDiscovery maturity. 

Understanding the Trends 

Both in-house legal professionals and law firm partners responding to Kaplan’s survey were clear that the following topics will be major influences on their approach to eDiscovery going forward. So how to deal with each one?

• Better data management processes
  There’s extensive data proliferation in eDiscovery — and its disorganization keeps IT professionals up at night. This, Judkins said, underscores the importance of implementing controls around different types of data and finding ways to manage, review, and store large volumes of data without excessive cost or time. I noted that establishing and improving the processes for managing and storing data is vital, especially given the ever-growing compliance burden. 
• The need for simpler eDiscovery solutions
  Ease of use is increasingly a priority in selecting eDiscovery solutions. Legal pros need to be able to use tools that don’t require technical know-how or IT intervention to find what they need. 
• A growing focus on AI in eDiscovery and data management in legal departments
  We noted that many organizations are taking the wrong approach to AI. Using AI to simply collect data as a first step and then try to analyze based on the data collected is counterproductive. What firms need to do instead is first decide what outcomes they want to achieve, then use AI to collect data to glean the analysis they’re looking for. 
• Lack of differentiation among eDiscovery vendors now that most have moved to the cloud
  One way to get beyond the marketing hype is to focus on the capabilities and features that are most important to your organization; investigate how a vendor’s offering matches up. (Please see our RFP Buyer’s Guide for more help on this topic). For example, if AI is a key requirement, examine how the vendor charges for this feature. Does the vendor, like Casepoint, include AI as a built-in feature of the platform — or is it a separate charge?
• The proliferation of messaging and chat apps
  Data is stored and used by apps including Slack, WhatsApp, Microsoft Teams, or Google in a variety of ways. All eDiscovery vendors need to be able to quickly develop and integrate their platform connectors to emerging social media, messaging, and chat apps. If your team needs a custom connector, how rapidly can your solution vendor create what you require? 
• The increasing importance of mobile device data management in eDiscovery
  Employee privacy is a central issue when collecting mobile data. The rules governing collection from personal devices are complex, especially as they relate to individuals maintaining possession of data outside traditional sources. We need better tools to automate these tasks and ensure they are performed in compliance with applicable privacy regulations and company policies. 

Treat the Problem, Not the Symptom

Kaplan’s survey highlighted some of the areas that respondents find most challenging, expensive, or contentious in eDiscovery. We discussed some of the ways Casepoint can tackle the problem at its root, rather than on the back end:

• Exploding data maps and data complexity. Data volumes are doubling about every three years, and some 80% of data is unstructured, residing outside traditional databases. Corporations now use more than 100 systems to create content, and that number is growing — which means that data types are increasingly diverse. 

Meaningful content now exists in many locations, including collaboration and productivity sites, financial systems, human resource information systems (HRISs), enterprise resource planning systems (ERPs), and more. Organizations need a way to defensibly track data through its lifecycle, from generation, collection, and processing to retention or removal. The best way to achieve this goal is to use a centralized cloud repository — a unified, secure, end-to-end solution for collections and processing and on to review and production such as Casepoint’s in-platform Matter Management App.

• Collecting the metrics that matter. Metrics are a significant pain point for legal pros who must compare activity and avoid collecting data that’s not needed to drive better information governance. 

Being able to import data directly and securely from the most widely used data collaboration sources creates tremendous efficiency for legal teams. Direct collection increases accuracy and automatically records chain of custody information to ensure a defensible process. Casepoint’s ahead of this market requirement, having already integrated robust collection capabilities into its platform with multiple avenues to collect directly from cloud application sources. And we collect straight into our workspaces, whereas other providers offer a separate workspace for processing and another for collection. Allowing all of this to happen within the same workspace ensures the collection process moves seamlessly and efficiently. 

Under Pressure 

All these challenges and pain points (and more) exist within an environment of evolving pressures in business, legal, and compliance. Our ACEDS audience noted that they’re most concerned about the following:

• Information governance, internal processes, and current preservation protocols. Organizations’ practices in the creation, valuation, use, sharing, storage, archiving, and deletion of information are under far greater scrutiny than ever before as a result of the growing number of privacy regulations.For example, changes to the California Privacy Rights Act (CPRA) will allow employees of organizations affected by the act to submit data subject access requests (DSARs) for the first time. Hosts of California employees now have the right to submit a request regarding the use, retention, or deletion of their records. Staying in compliance with records retention is a complex and expensive process.
• Accelerating numbers of requests and shorter timelines highlight the urgency of educating end users about the scale of work required for eDiscovery. On top of overwhelming data volumes and the complexity of managing different data types, organizations are responding to more DSARs, second requests, and investigations that require large-scale eDiscovery activity. Legal teams need top-flight technology to stay on top of these issues while making a cogent case for investment and providing arguments for the value and efficacy of the tools required to do the job.
• Change management. The pace of change continues to accelerate for legal teams. It’s not just new compliance or privacy laws, or more intense regulatory scrutiny of M&A activity; both the technology they need to review for eDiscovery activity and the way they use technology to manage their caseloads are morphing quickly. Users now need to operate technologies with minimal IT supervision and understand how to apply AI to its best advantage. This can’t be achieved if the platforms used are unwieldy or inefficient. 
• Attracting and keeping talent. The legal recruitment environment is described (rightly) as “ridiculously competitive” in Kaplan’s survey. The talent pool is shrinking as mid-level lawyers move to smaller firms, innovative ALSPs, or remote-work situations to achieve a better work-life balance and greater job satisfaction. Certainly, salaries, bonuses, and on-site perks play a major role in attracting and retaining talented mid-level lawyers. 

But technology will also play a role. The more that law firms and legal departments can leverage technology to minimize repetitive, basic tasks and free up lawyers to perform the high-value work they were trained to do, the more likely they are to retain top talent.

In our next post, we’ll discuss areas that legal pros prioritize for upcoming investment, and how these plans might play out in the future.