“In with the new” is sometimes slow going in the legal realm, but what would a year-end be without taking at least a brief moment to look back before moving on? 2013 may not have been one with the most seismic shifts in e-discovery, but there were some important topics and themes that will no doubt carry on throughout 2014 and beyond:
- Technology-assisted review (TAR): 2013 saw law firms and companies testing out the efficacy of more and more electronic tools and processes for slogging through ever-growing volumes of ESI. The conversation, once about defensibility, has generally been replaced with more tactical war stories and cost-benefit analyses as matters where such technologies have been deployed reach the courtroom. Those who hoped for or expected it to be a silver bullet have no doubt seen the light. Nothing about e-discovery is that easy, and expertise is required to make it all work. Whether it’s the seed sets and algorithms of predictive coding or the more deterministic approach of professional linguists leveraging sophisticated keyword tools, the use and acceptance of TAR is an evolutionary process that will continue to gain momentum in 2014 and beyond.
- Technological competence of counsel: The growing spotlight on the technological competence of counsel, called out in the ABA’s Model Rules of Professional Conduct and spurred on by Casey Flaherty’s “tech audit” concept, is upping the ante for counsel to get up to speed with—or at least attempt to chase—the moving train of advancing technology in the legal realm. The pressure will no doubt grow as the impact of exploding ESI volumes and the challenges of social media continue to push the boundaries of privacy, security, and e-discovery concerns. It behooves counsel know what resources to tap in 2014 to keep with technology of the times.
- Federal Rules changes: Discussion and debate around proposed amendments to the Federal Rules continues to heat up after November’s congressional testimony. Major items in the brew: presumptive limits on depositions and interrogatories; a sanctions standard for e-discovery violations; and a new emphasis on the “proportionality” of discovery demands. Public comment continues into 2014, followed by a final recommendation of changes by the U.S. Supreme Court, and Congressional consideration of the Supreme Court’s proposal. Whether the changes are accepted as is—and what the impact will be if they are—is anyone’s guess at the moment, but this should definitely be on everyone’s radar in the coming year.
- Social media: Reported cases involving evidence from social media are more than doubling every year and these digital venues are increasingly targeted in search warrants and government subpoenas in criminal matters. It shouldn’t be a surprise that the data repositories of social media are becoming impossible to resist when a litigation or investigation arises. When has there ever been a more fertile collection of information to explore—or a greater risk of privacy and security breach? 2014 is bound to be full of surprises and undoubtedly some pain, as companies, employees, counsel and the courts face the fact that even the most offhanded tweet can end up as a lion’s roar in the courtroom.
- Information governance: “Information governance” will become more of a catchphrase than ever in 2014 due to growing threats related to ESI held within in the enterprise and—more and more—boomeranging outside of it. As information governance and e-discovery are becoming conceptually coupled, companies can only benefit from the sage advice of counsel to raise their data and social media awareness, increase security precautions, and tighten up information-related policies and procedures.
For more detailed thoughts on these topics and themes, download H5’s piece: