This article appeared in Cybersecurity Law & Strategy, an ALM publication for privacy and security professionals, Chief Information Security Officers, Chief Information Officers, Chief Technology Officers, Corporate Counsel, Internet and Tech Practitioners, In-House Counsel. Visit the website to learn more.

 

E-discovery, as an industry, is once again at an inflection point. As both an industry and technical endeavor that is now older than 20 years, it has rarely stood still for more than a couple years. Looking back at that (simpler?) time, the 1990s saw more and more relevant information being produced and maintained in electronic format, until finally in 2003-04, the Zubulake rulings delivered a clarion call to organizations that they had an obligation to preserve (and produce) relevant electronically stored information (ESI) just as thoroughly as they did traditional paper documents.

Since then, we've seen changes in technology (from specialized point tools to broad e-discovery platforms); processes (from fragmented, multi-party, and reactive to proactive), and people (from highly technical specialists to members of in-house legal teams). And the changes keep on coming. What are the big trends that are exerting pressure on e-discovery teams today — and more importantly, what will an effective e-discovery team look like in the coming years?

Rising Demands on In-House Legal Teams

Despite advances in technology and wider adoption of best practices, the demands on in-house legal teams continue to rise for a variety of reasons. The number of disputes, especially class action suits, is increasing, as are data volumes and data sources. The regulatory landscape continues to evolve, both in terms of general data privacy regulations and industry-specific regulations. Business imperatives to control costs exert downward pressure on budgets as well. These forces aren't necessarily new, after all. We live in a litigious society. Laws change to meet the challenges of the day. Businesses have — and always will — demand efficiency.

Legal departments are finding ways to cope. They're using technology to take better control of the e-discovery process, but also embracing a legal operations mindset to increase efficiency, both in terms of timelines and budgets. Additionally, the rise of alternative legal service providers (ALSPs) has given in-house teams access to specialized legal professionals at lower cost than working through traditional law firms, so they can augment their capabilities without breaking their budgets when necessary.

Accelerating Technology Change

Since its inception, e-discovery has been inextricably tied to technology — both the tools that e-discovery professionals use and the broad range of technologies they interface with to get to the facts of a given matter. In terms of the tools in use, the movement away from multiple disparate point tools and toward unified e-discovery platforms with user-friendly interfaces has taken e-discovery from the domain of technicians into something a legal professional can accomplish.

In terms of data sources, the acceleration of technology can make e-discovery teams like they're running on a proverbial hamster wheel in a never-ending game of “catch-up.” In that circumstance, the lure of big players such as Microsoft offering e-discovery solutions can be strong, but they're no guarantee of success. Data from “rogue applications” outside of the Microsoft Suite (e.g., Slack, Google Drive, etc.) will still need to be preserved and collected. Even though a preponderance of enterprise data may live inside Office 365 applications, e-discovery professionals must be aware and able to perform their duties on all organizational data sources.

Evolving e-Discovery Case Law

The 2006 and 2015 sets of amendments to the Federal Rules of Civil Procedure (FRCP) stand as key markers defining the obligations of e-discovery professionals. However, they also understand that case law does as much (if not more) to define the actual practice of e-discovery. New rulings are issued day-after-day, month-after-month, and year-after-year, slowly refining organizational e-discovery requirements.

Recent case law has influenced e-discovery in four key areas:

1. Proportionality: Courts are looking closely at proportionality factors to determine the appropriate scope for cases as they move away from “discovery about discovery.”
2. Preservation and spoliation: Courts are starting to focus on the spirit of FRCP 37(e) and looking for curative measures rather than punitive sanctions.
3. Cooperation: Courts are demanding good faith negotiations between opposing parties to reach agreements on the scope of the discovery process.
4. Cross-border discovery: GDPR (and other privacy regulations) have big implications for organizations' discovery processes, as they have to balance potential conflicts arising from how they can use individuals' data.

The Intersection of e-Discovery With Other Regulatory Regimes

The implementation of the EU's General Data Protection Regulation (GDPR), as well as the passage of the California Consumer Protection Act (CCPA), are just the leading edge of a trend that will surely have a big impact on the e-discovery industry. (After all, many more states are considering changes in data privacy regulations, and legislation has even been introduced in the U.S. Senate, even if it's unlikely to go anywhere in the near future.)

On an individual level, these changes may open up new opportunities for career development. But the transformative changes will happen at the technology and process level. There's a natural intersection between data preservation and these regulations' requirements for moving, disclosing or disposing of data that contains private information. Organizations must understand not only their data landscape, but also their preservation obligations for active litigation and retention for other regulatory purposes, or they could find themselves in trouble in two directions: either by failing to properly preserve data need for litigation; or by not being able to respond properly to an individual requesting his or her data in a timely fashion.

So, what will the e-discovery team of the future look like in order to respond effectively to these trends? Here are three ways it might differ from what you're used to.

It Will Be Proactive

Reactive e-discovery is a recipe for disaster. If an e-discovery team doesn't have a firm grasp on its likely custodians, where their data resides, and a process in place to ensure its preservation, they'll be behind the eight ball before their real job even starts. They'll be at risk of missed deadlines, budget overruns and increased legal risk.

Proactive e-discovery teams are embracing project management principles, as they:

• Move away from using attorneys as e-discovery managers
• In-source e-discovery activities starting with the left side of the EDRM
• Cooperate and communicate effectively, both with IT departments and outside counsel

It Will Be Smaller

Anyone who has spent more than a week in a business environment has heard the phrase, “Do less with more.” Unfortunately, legal teams in general and e-discovery teams in particular are not exempt from this mandate, and it often translates into reduced headcount. In fact, a recent Exterro survey found that almost 80% of in-house legal teams had fewer than 50 members.

Just because a legal team is small doesn't mean it struggles to perform. The same survey revealed that an even greater proportion (84%) of respondents were “very or somewhat satisfied” with their legal team's performance. Part of this is because legal teams are developing diverse skill sets to optimize their efficiency. Attorneys on teams specialize in a variety of roles including litigation, contracts, and relationship management. Meanwhile, legal teams are adding IT professionals to support operations like e-discovery, with fully 36% having dedicated IT resources in the legal department.

It Will Embrace Technology

Perhaps it goes without saying, but technology plays a huge role in ensuring that these smaller, proactive legal teams are able to function effectively. It is the great equalizer in matters of e-discovery.

How is it showing up? E-discovery teams are adopting more tools to get their work done. The average legal department uses 3.5 dedicated legal software tools. 75% of professionals agree that new technology makes their job easier — and 50% agree that the technologies being introduced are now made for legal professionals, rather than IT specialists.

The most popular tools by legal teams include both legal hold technology and e-discovery data collection and processing (as well as document management, e-billing and matter management). Moving away from point tools for a holistic e-discovery technology platform, which minimizes the risks and delays inherent to data transfers, can help lead e-discovery teams to an even more efficient future.

To go in depth on the trends shaping e-discovery today, download Exterro's and FTI Consulting's The State of E-Discovery 2019 report.

*****

Nishad Shevde is Managing Director – Client Operations at Exterro where, as a member of Exterro's leadership team, he leads implementation services for Exterro's clients, with a focus on Information Governance and E-Discovery Data Management engagements and serves as an external and internal subject matter expert. Nishad is an expert in complex e-discovery program and matter management for both Fortune 500 corporations and AMLAW 100 law firm clients. Nishad also has multiple years of experience leading large global teams of e-discovery consultants and project managers at industry-leading organizations.