Where e-discovery is headed in 2021 and beyond
E-discovery has undergone a rapid transition in recent years, with new and constantly improving technology enabling us to move through the process with ever-increasing speed and accuracy. In large part, it’s because of these enhanced tools and improving workflows that our industry can keep up with the fast growth of electronically stored information (ESI) as our work and personal lives increasingly shift online.
In 2021, there will be lasting changes in the way we work and interact with each other—some of which have been accelerated and solidified by COVID-19. E-discovery vendors will face new challenges as a result, but by constantly adapting our workflows and tools, we’ll continue to improve the way we manage, preserve, collect, analyze and produce responsive documents.
E-discovery changes ahead in 2021
Continued expansion of ESI data
In today’s world, ESI data points are being created around us constantly—through team collaboration tools at work; social media platforms; FitBits, watches and other internet-connected devices; and even business and manufacturing automation and monitoring systems. In eDiscovery, we’ve so far been able to meet the challenges posed by this flood of new information.
We expect growth in this area to continue in the coming year—both in predictable ways and in ways we can’t yet imagine. We’re certainly not yet at the leveling-off point for human and system data creation—however, in e-discovery, most of this data shouldn’t affect our workloads in a major way. That’s because the data points from automation systems and IoT devices are relatively structured and simple, which allows us to analyze, review and produce them using built-in tools. (Team collaboration platforms may be an outlier, for reasons explained below.) What could cause challenges down the line are new sources of data from state-of-the-art tech products, which generally don’t include features to address compliance, regulatory or eDiscovery concerns—at least not initially.
Changing e-discovery workflows highlight value of expertise
Document review (and legal discovery in general) used to be done in a uniform, linear way, often taking many months and sometimes years. The introduction of technology assisted review (TAR) revolutionized review and substantially shortened that part of the e-discovery workflow, but other areas were slower to change. In the years since TAR became commonplace, the entire process has incorporated better methods and technologies.
In the old days, ediscovery would start with one key person or a small group (called custodians). Based on that initial information, we would expand the search to include others who might possess relevant information. The drawback to this piecemeal way of doing things was that legal teams sometimes wouldn’t realize, until months into the process, that they weren’t searching in the most advantageous places.
Analytics, once used toward the end of the e-discovery workflow, is now a regular part of data identification, analysis and document review. For this approach to be most effective, data from all possible sources needs to be gathered as early as practical so that it can be analyzed as a whole. The end result of all of this is that we don’t spend months gradually finding where the most relevant data is. We get everything we need at the outset — the relevant and irrelevant—and use technology to weed out the detritus in a precise way.
In this changed environment, where many e-discovery providers now possess similar sets of software and other analytical tools, genuine expertise in those tools, processes and concepts will become the center of focus in 2021 and beyond. Human experts who truly understand how to best harness those powerful technologies will bring ever more value to the process and will become one of the most important and leading differentiators between service providers. From standard searching to advanced analytics, these areas are more and more as much art as science, and today, just one or two highly skilled professionals using these advanced resources can easily do the work—and garner often better results—than the large brute-force teams of yesterday.
Chats continue to present fresh challenges
Slack, Microsoft Teams, and other team collaboration platforms have been around for years, but they grew in popularity in 2020 as more teams worked remotely during the pandemic. This has resulted in a lot of new data—chats, meetings and videos in particular—that could potentially have relevance in legal matters.
Chats, especially, pose a challenge to e-discovery vendors trying to search and produce that data. They’re fundamentally different from email threads, which can be identified using subject lines and other identifiers, and which usually cover only a handful of topics. Chats, on the other hand, can extend over years and touch upon hundreds of different topics, all in a stream-of-consciousness style that can be extremely difficult to decipher for an outsider who might miss sarcasm or not have important contextual information. The sheer volume of that data will continue to explode as chats become more ubiquitous in workplaces in coming years, and as more Gen Z employees bring with them a preference for chat and collaboration platforms over older communication methods such as email. As those platforms continue to develop and expand, so will the breadth, width and depth of types and amounts of data generated.
What’s more, the litigation industry generally still lacks a clear, universal standard for what constitutes the start and end of a chat topic or thread, let alone how best to produce that data. The result is continued confusion for litigators and most others involved, and often, the disclosure of a vast amount of irrelevant data. In the coming year, we can expect some clarity will come to this issue, especially since chats will continue to be an important method of work communication for some time to come, but there’s no simple answer yet.
Continuing to adapt
More than any time in recent memory, the future feels uncertain not just in e-discovery, but in many aspects of business and general life as well. That said, at least when it comes to e-discovery,we can be sure our field will continue to adapt and stay on top of changing technologies, communication methods and processes as we continue to improve what is still a relatively young industry overall. And above all else, as history has shown us time and time again, nothing powers innovation, improvement and daily case success more than the people who run all aspects of e-discovery—they have been and always will be the most valuable part of any e-discovery solution.