The practice of eDiscovery is changing dramatically and is on the precipice of rediscovering what discovery is all about.
That is, modern eDiscovery is focused on finding and establishing the facts that support legal arguments and tactical strategy, and not solely producing documents as efficiently as possible. Guided by skilled eDiscovery lawyers utilizing advanced technology and processes, the task of transforming thousands if not millions of pieces of information from multiple sources into a story that counsel can tell at all stages of a matter is becoming possible without exceeding the proportional spending limits of the case. Embracing the integration of skilled eDiscovery attorneys into case teams, embracing innovations in artificial intelligence (“AI”), and weaving eDiscovery into the strategy is the next frontier in eDiscovery and delivers tremendous value to clients.
Moving Beyond Just Producing Documents “Efficiently”
For the past 5 years, the focus of eDiscovery has been on the process of efficient and cost-effective discovery, i.e., the identification, preservation, collection, review and production of electronically stored information (ESI) in response to a request for production in a lawsuit or investigation. For years, corporations and eDiscovery vendors and consultants alike have focused on this process, and for good reason, too. eDiscovery can be costly, and it carries considerable risks, both in terms of costs to execute and concerns that a single misstep along the way could derail the strength of a case on the merits. The side effect of this focus on process and eDiscovery risks is that identification and production of documents was frequently divorced from the fact-finding process and solely about responding to discovery requests as efficiently as possible without stepping on landmines.
The Volume and Variety of ESI Is Growing Exponentially
eDiscovery risks are increasing and becoming more complex. The volume and variety of ESI in use by corporations and individuals is expanding exponentially. Cloud-based collaboration platforms with integrated chat, file sharing, and virtual work rooms are increasingly used more than email. Text messaging in all its various forms is discoverable, and given the immediacy and flexibility of the platform, it is becoming more widespread as a preferred form of communication within businesses. Further, the “connectedness” of things, or the internet of things (“IoT”), which leave traces of discoverable information such as time stamps, location data, or even video or audio recordings, completely surround us.
Advanced Technology Changes the Discovery Dynamic
In response to this trend, some organizations have developed sophisticated in-house capabilities to address preservation and collection of ESI, and have partnerships with vendors that offer the latest in eDiscovery fact-finding technology. But it is ultimately the responsibility of outside counsel to make effective use of process and technology to distill and develop a factual narrative from potentially millions of ESI records, and to do so defensibly and early in the matter. Harnessing the facts from the ESI is ultimately the purpose of the discovery process.
The combination of advancements in eDiscovery technology and process are once again making this possible. For example, one of the most powerful, Continuous Active Learning (CAL), which is a relatively new technology in itself, is evolving to offer Portable Predictive Models. At its core, CAL is a form of predictive coding that learns from attorney document coding decisions and re-ranks and reorders the documents in a document review at regular intervals to push relevant information toward the top of the queue. The effect is that relevant information within large document populations is pushed to the top and identified faster. CAL technology can be employed to not only prioritize the review of documents, but also to cut a document review short of reviewing all documents where the vast majority of the relevant documents have been identified by the CAL engine. The ability to forgo reviewing certain documents using CAL is supported by quality control testing and proportionality principles.
The concept of Portable Predictive Models takes this concept a step further by allowing the predictive model built in one matter to be applied to another matter from the start. In essence, the attorney coding decisions within a document review can be preserved and applied to new matters with similar legal issues and data sets to immediately jumpstart the identification of key information. The predictive models themselves can be continuously refined and honed over time and developed to identify key relevant information for a multitude of different types of legal matters, or even for identifying privileged or confidential information, for example.
The potential value in harnessing these technologies to make true fact-finding within the eDiscovery process is tremendous. Portable Predictive Models powered by the combined work product of attorneys over multiple matters offer clients a tremendous advantage in speed to evidence. However, the legal landscape surrounding the use of these technologies is very much in flux, particularly as it relates to the information, parameters, and disclosures required to support stopping a review short of reviewing all documents. Further, the ability to manage eDiscovery risk through effective preservation of ESI but within a reasonable and proportional scope considering the growing volume and varieties for ESI remains a critical component in the ability to realize this value.
The Role of the eDiscovery Attorney Is Becoming More Important
As a result, the role of the eDiscovery attorney, a rare breed of attorney who is not only a skilled technologist and project manager but who is also a skilled litigator, is evolving and becoming increasingly important. Attorneys with this skillset will become even more essential to address ESI preservation and collection scoping decisions, develop legal proportionality strategy and the supporting facts, and to effectively leverage the latest in technology-assisted review and AI technology to its fullest potential. Law firms and organizations that embrace these skills and technology innovations will unlock and harness the creativity, insight, and experience of litigators to shape fact development from the very beginning of a legal matter.
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