eDiscovery for the Masses

2012 is already shaping up as a pivotal year for eDiscovery.  From Predictive Coding to Cost Shifting the race is on.

Dean Gonsowski has identified the top 10 trends for 2012.

  1. Technology Assisted Review (TAR) gains speed.
  2. The custodian-based collection model comes under stress.
  3. The FRCP amendment debate will rage on – unfortunately without much near term progress.
  4. Data hoarding increasingly comes under pressure.
  5. Information governance becomes a reality.
  6. Backup tapes will be increasingly seen as a liability.
  7. International e-discovery and e-disclosure processes will continue to mature.
  8. Email becomes “so 2009” as social media gains traction.
  9. Cost-shifting will become more prevalent, impacting the “American Rule.”
  10. Risk assessment becomes a critical component of e-discovery.

My curiosity however lies in the old adage that “we don’t know what we don’t know.”

I think that if we dismiss the trends that we can see coming over the hill, we should be able to pick up some noise surrounding things that we have not seen yet. One of these things is being compared to the “black box” installed on commercial aircraft. It contains a lot of information that was not typically recorded before becoming standard equipment. In the IT world, imagine a “black box” system who’s only purpose is to collect data about the data. While the BI implications are interesting, the eDiscovery uses are mesmerizing. Granted there are some valid arguments around privacy and security, but arguments are opportunities to improve and never a reason to abandon an idea.

Another key trend that I would like to juggle is the idea that the EDRM model may experience a “Will It Blend” moment where the functions and their sequence are reconfigured on the fly to support faster, cheaper, more focused discovery.  The idea that only 20% of our documents are relevant means that we wasted 80% of our time looking at documents that had nothing to do with our legal matter. I foresee a scenario where reinventing the discovery model will allow us to collect 50%-75% less irrelevant information.

My final thought hovers around the threat that some of our ediscovery systems themselves could be “discoverable”. As a technologist this is a concept that could lead to many sleepless nights. I will be doing some more research to identify some precedent around this concept. Hopefully I’m not the only person concerned about the legal protocols in place to prevent your opposing counsel from ordering up the honeypot for lunch.


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