After a momentous year for e-discovery in 2012, is it possible that 2013 could be a letdown? Given the current pace of developments, we sincerely doubt it. The year ahead holds great promise for e-discovery. While we expect to see the cloud and “Big Data” continue to be hot topics, we also expect to see rapid progress made in a few other areas, including increased transparency in TAR, better ways to address continued growth of the Mac operating system (OS), and increased adoption of managed and shared e-discovery services.
Now that TAR has been accepted by several federal and state courts, one primary hurdle to its widespread use remains: the perception that it is a “black box” technology. We predict that TAR proponents will attack this perceived lack of transparency on two fronts: (1) sharing information with opposing counsel on the front end, and (2) hiring experts to validate the results on the back end. First, at the Rule 26(f) conference, parties can demonstrate how the TAR engine is properly trained by negotiating how much information to share. Second, parties should recruit several experts to help drive the TAR process. One should be a technology specialist capable of explaining the technology in layman’s terms to the court and opposing counsel. Two more experts will add to the defensibility of your approach: statisticians and linguists. TAR decides responsiveness based on linguistic patterns and statistical algorithms; therefore, linguists can help parties choose keywords to use in searches, and statisticians can use metrics to validate sampling techniques and the quality of results.
In addition, we suspect that the Mac OS will continue to grow in popularity, in line with the expanding role of Apple products, including Mac computers, iPhones, and iPads, in the workplace. As of January 2012, almost half of all companies with 1,000 or more employees used Macs and planned to increase their use by 52 percent, according to Forrester Research. This has two ramifications: (1) corporations and their outside counsel will have to collect, review and produce a greater volume of Mac data for e-discovery, a challenging task since the format of Mac data differs from that of Windows-based PC data in numerous ways, and (2) e-discovery providers will have to adapt their software to run on the Mac platform. In 2012, we saw developments to address both – and we expect to see more vendors bring new solutions to the e-discovery market.
Finally, we expect to see a rise in the adoption of managed and shared services models for handling e-discovery, by both corporations and law firms. With managed services, corporations outsource the entire e-discovery process; with shared services, law departments split the responsibilities with a third party. These outsourcing models serve organizations in a number of ways – highlighted in IDC’s Managed Services for eDiscovery white paper published late last year and covered by Gabriela Baron in The Metropolitan Corporate Counsel. First, they allow the law department to focus on its core responsibility—developing case strategy—instead of managing documents. Second, they improve efficiency by leveraging the third party’s technology, headcount, and expertise in handling large amounts of data and performing repetitive tasks, such as creating privilege logs. Third, consolidating e-discovery services traditionally dispersed among various law firms and their vendors into one company reduces the likelihood of inconsistency in the review process, which can lead to errors, omissions, and—at worst—sanctions. Finally, these services help clients apply best practices learned across matters to future projects, generating even greater efficiencies.
Throughout the year, we will continue to monitor these trends—as well as many others—and keep you updated.
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