Editor: eDiscovery reforms are a topic of great interest. What is your perspective on potential reforms and the benefits of those reforms?
d’Alencon: A New Year brings with it New Year’s resolutions, and for 2012 eDiscovery reform is high on almost everyone’s list. There are a number of pressing reasons for this. Gibson Dunn’s 2011 Mid-Year E-Discovery Update,1 based upon their review of 187 e-discovery decisions from the federal courts issued between January 1 and June 15, 2011, details several areas of likely motivators for 2012 New Year’s eDiscovery resolutions, as this excerpt shows:
- The number of e-discovery decisions continues to increase at a blistering pace. The 187 decisions we identified in the first half of 2011 represents an 82 percent increase over the 103 decisions we identified at mid-year 2010.
- The number of instances in which litigants sought sanctions in the first half of 2011 was more than double the number in the same period last year (68 at mid-year 2011 versus 31 at mid-year 2010), and sanctions awards have nearly doubled in absolute terms (38 at mid-year 2011 versus 21 at mid-year 2010).
- Courts continued to demand cooperation and remained keenly aware of counsel's efforts – or lack thereof – to resolve e-discovery disputes before seeking judicial involvement.
- It turns out that there is such a thing as "discovery karma," at least in the 10th Circuit, and "ankle-biting" an opponent for alleged discovery glitches may not be appreciated, especially when one's own house is not in order.
Furthermore, industry vendor Kroll Ontrak released its yearly analysis of reported electronic discovery opinions and notable e-discovery themes in 2011. Among their conclusions were the following:
In 2011, preservation challenges topped the list of discovery concerns for the second year in a row, as law firms, corporations, members of the judiciary and the Federal Advisory Committee on Civil Rules grapple with these complex legal and technology issues.
Issues surrounding cost-shifting and the taxation of eDiscovery costs, discovery of data from social media websites, and eDiscovery in criminal cases emerged in 2011 as new themes in judicial opinions.
These data points are illuminating and instructive, but they represent mostly symptoms as opposed to root causes.
Editor: What are some root causes of these eDiscovery symptoms?
d’Alencon: One of the primary root causes is the intersection of “Big Data” and eDiscovery.
According to International Data Corporation (IDC) and EMC, the world’s information is now doubling every two years. In 2011 alone, we created approximately 1.8 zettabytes of new ESI. A zettabyte equals 1 billion terabytes. To put that in perspective, in 2009, the entire contents of the Internet was estimated at only half a zettabyte, which is equivalent to a stack of books stretching from the Earth to Pluto 10 times. The amount of electronically stored information we are producing also creates problems in managing, analyzing, searching and using it. This is a simple description of Big Data.
Unsurprisingly, if we are creating this much data, it will increasingly end up in litigation, regulatory requests and more, so Big Data is a primary driver of eDiscovery. But it is an opportunity as well.
The October, 2011 McKinsey Quarterly posits, “Over time, we believe Big Data may well become a new type of corporate asset that will cut across business units and function much as a powerful brand does, representing a key basis for competition.”
To take advantage of Big Data requires that it be analyzed and measured. And, it has been said that you cannot improve what you cannot measure. But in eDiscovery, we have not done a very good job of measuring. According to the Enterprise Strategy Group (ESG) in a 2011 survey of corporate counsel, “Most organizations are not tracking e-discovery spending.”2 Furthermore, ESG found that, “While they expect e-discovery competency of their firms and consider it an important factor in selecting outside counsel on a case, less than one-third of respondents have ever tracked the productivity or efficiency of document review.” So we know there is a major disconnect between what we are doing and what we need to do. But there is hope.
According to IDC, “new capture, search, discovery, and analysis tools can help organizations gain insights from their unstructured data, which accounts for more than 90 percent of the digital universe.” Many of these tools fall under the umbrellas of Big Data analytics and business intelligence (BI). For eDiscovery, this means tools that provide data and process management, such as enterprise dashboards that enable business-level measurements and views of the costs, timeframes and risks associated with eDiscovery. It also means that we will continue to see new technology and tools, such as connectors to enterprise data sources, that enable processing and automation of large data sets.
Data is being created at a blistering pace and it is discoverable, yet many organizations have not yet implemented policies and controls to systematically manage their data for multiple business purposes. Organizations often do not possess or utilize tools to analyze their ESI, leading to inconsistent preservation policies, and as this data is used in eDiscovery, less than one-third of organizations measure and track key performance indicators (KPIs) for their eDiscovery efforts and expenses, implying that they are likely to repeat the mistakes of the past. 3
This explosion of data presents companies with an infrastructure, storage and cost increase that most organizations will find is impossible to keep up with. Since the cost/benefit equation is under pressure, better information governance, coupled with outsourced, cloud-based resources, are likely solutions to this issue.
Editor: Are there other root causes of these eDiscovery symptoms?
d’Alencon: Another root cause is that the very nature of ESI continues to become more complex, not only because there continues to be immensely more of it, but also because the types of data and the number of locations from which to collect data continue to increase. This challenge spans from behind the firewall storage, email, archives, applications and computers, to cloud-based business applications and systems, a dizzying array of social media and also mobile devices, including smart phones and tablet computers.
The convenience of networks with higher bandwidth, constantly connected mobile devices and the new software applications that use this infrastructure have helped to fuel the need not only for more automated and intelligent identification, collection and processing tools, but also for better corporate information governance, including social media policies and controls.
Editor: What potential solutions exist to these eDiscovery challenges?
d’Alencon: I see two high-level categories of potential New Year’s resolutions to these challenges, both of which ultimately reduce the cost, time and risk of eDiscovery: the application of business discipline to eDiscovery and the use of appropriate technology.
With regard to business discipline, I think the most important area of focus is the maturation of corporate information governance and eDiscovery processes. Since the milestone of the 2006 Amended Federal Rules of Civil Procedure (FRCP), corporations have increasingly become aware not only their obligations, but also of the time, cost and risk inherent in their approaches to eDiscovery. This awareness has incentivized them to become more mature in their eDiscovery approaches -- in other words, applying organizational best practices in a consistent, repeatable way and utilizing appropriate technology to support that approach, thereby reducing eDiscovery risk, cost and time.
As corporate eDiscovery processes continue to mature in 2012, best practices will involve identifying stakeholders; holding regular status meetings; managing timelines, workflow and production requirements; tracking and measuring progress; and standardizing on identified best practices. eDiscovery is fundamentally a collaborative and time-sensitive process that involves multiple geographically dispersed participants.
Editor: You also cited “use of appropriate technology.” Can you provide some details?
d’Alencon: Depending upon the part of the eDiscovery process that is being addressed, the technology can and will vary, ranging from IT-driven information governance and information management systems to archiving, enterprise search and legal-driven eDiscovery and case management tools. More mature organizations will move towards utilizing centralized legal repositories to support a multi-matter eDiscovery process and rely less on single-matter and ad hoc management of individual cases. This approach allows organizations to
- leverage work product (coding, privilege decisions, etc.) between or among related cases;
- avoid over-collection by collecting and processing only “net new” data not collected for previous matters;
- reapply searches and queries against net new data collection;
- protect privilege across all cases easily to avoid inadvertent production of privileged documents;
- and standardize processes and workflow via templates, so that new cases can be set up in minutes from existing ones, using approved best practices.
There are a number of additional technologies that will impact our processes and workflow, including predictive coding, technology-assisted review, automated data classification, dynamic concept search, data visualization, threading and automated data connectors.
Arguably the most significant is technology-assisted review. The belief that manual review by humans is the gold standard and, therefore, more accurate than any computer or software application is no longer true. The amount of ESI today makes it virtually impossible for reviewers to effectively continue with the practice of linear review. The Richmond Journal of Law and Technology Vol. XVII, Issue 3, Article 11 (2011) provides some compelling evidence that technology-assisted review is more effective, efficient and exhaustive than manual review.
Ultimately Big Data and the growing size and complexity of ESI are driving us to consider real eDiscovery reforms. If you accept the prior argument about Big Data and its relevance to eDiscovery, then in 2012 you are inevitably looking for technology and tools to help you stay ahead of the curve.
Editor: Is there anything else you would like to add?
d’Alencon: I am hopeful that your New Year’s eDiscovery resolutions are more successful than the typical New Year resolution!
1Gibson Dunn, “2011 Mid-Year E-Discovery Update” http://www.gibsondunn.com/publications/pages/2011Mid-YearE-DiscoveryUpdate.aspx, July 22, 2011.
2ESG Research Reports, “eDiscovery Market Trends: A View from the Legal Department, Preliminary Findings” by Brian Babineau and Katey Wood, August, 2011.
3 Ibid.
Published December 20, 2011.
