Ediscovery Top 10 for 2010

Clearwell Systems has predicted an increased role for Early Case Assessment, E-Discovery Staffing and Platform-Based Solutions in its top 10 predictions for e-discovery in 2010.

Based on insights gathered from industry experts, enterprises and law firms, Clearwell expects one of the most significant priorities in the year ahead to be a greater focus on controlling e-discovery costs, and gaining better control over the entire, complex process. As a result, legal and IT departments are becoming more strategic about managing their electronic data while they proactively bring e-discovery in-house.

Clearwell's Top 10 Electronic Discovery Predictions for 2010 include:

1. Early case assessment (ECA) moves from a "nice to have" to a "must have" requirement for any matter involving electronically stored information (ESI). In 2009, ECA moved into the mainstream as a methodology to quickly understand case facts, assess risk and lower both data processing and attorney review costs. However in 2010, with the advancement of products and the increased socialization within the bar and the litigation support community, ECA will graduate into a core methodology for savvy litigators regardless of matter type or size.

2. Appetites for broad information lifecycle management initiatives will diminish as organizations will realize these programs are far too complex to solve specific pain points, and they often take too much time (measured in years) to execute. The economic reality is that these holistic, cross-systems, cross-department initiatives often fail to demonstrate the return on investment necessary in today's challenging economy.

3. Staffing roles will continue to evolve with a newfound focus on project management. The role of an in-house e-discovery coordinator will emerge as more of a project manager across the entire e-discovery process and has expertise in both, legal and IT. This shift will become increasingly necessary as e-discovery evolves into a standard business process that is repeatable, measurable, and defensible.

4. Data analytics and statistical methodologies will gain traction to augment the type of subjective decision making approaches that have historically formed the backbone of the e-discovery search and review processes. These objective methodologies have long been called on as best practices by the likes of the Sedona Working Group. In 2010, they will start to move from theoretical to practical task as e-discovery tools increasingly move in-house.

5. Integrated e-discovery platforms will finally become a reality as customers graduate from painfully stitching point solutions together, thus requiring less physical document exporting and importing between applications, cutting costs and increasing defensibility.

6. Associate-based linear document review processes will gradually go extinct, as both clients and law firms grow tired of expensive, brute force review processes. Data minimization using ECA products will reduce the number of documents reviewed. More review work will either be in-sourced or managed with specialized contract attorneys, who are often less expensive and better trained for this type of work.

7. FRE 502 (the Federal Rule of Evidence 502 was enacted in the US in 2008 to help alleviate the costs of electronic discovery) and "clawback" agreements will be increasingly used to reduce the need for any manual, eyes-on review, although many litigators will resist this trend because of the fears of "un-ringing the bell" when privileged information is disclosed in any context. Nevertheless, as ESI volumes increasingly become unmanageable, even reluctant attorneys will become increasingly comfortable with a less manual review process for ESI.

8. Alternatives to the much-lauded EDRM model will gain traction, as practitioners strive to find an even better, and perhaps more practical, project management framework, in many cases still acknowledging the role that the EDRM has taken in forming the lingua franca of the e-discovery industry.

9. The push for cooperation in the e-discovery process will make incremental progress. Increasingly, this type of cooperation, as strongly advocated by the Sedona Working Group, will be forced by judges and local rules. Sedona has been successful in getting the bench on board this initiative and there are now more than 100 judges who have signed up to show their support.

10. "Cloud" computing will begin to impact how e-discovery data preservation/collection is done, both in terms of social media and traditional applications. Companies will increasingly block social media applications due to fears surrounding the inability to preserve and collect this content. Companies will also demand that e-discovery products support preservation/collection from applications sitting in the cloud without significant degradation in performance and response times.

"In 2010 the bottom line will still be what matters first and foremost. By bringing e-discovery in-house, enterprises can have increased visibility into the costs involved, better control over the process of reviewing and processing electronic evidence, and a more strategic approach to their cases," said Dean Gonsowski, vice president of e-discovery services at Clearwell Systems.

"Given the steady pace of litigation and regulatory requests, we expect e-discovery next year to be regarded even more so as a core business process within the enterprise -- like sales, finance and manufacturing -- versus the reactive fire-drill it has been in the past."