Based on our observations of what has occurred in e-discovery over the last year, as well as our trusty crystal ball, here is what we anticipate will happen during the coming year:
1. At long last, the U.S. Supreme Court will approve the pending amendments to the Federal Rules of Civil Procedure and incorporate proportionality into Rule 26(b)(1) and clarify standards for imposing sanctions in Rule 37(e). The public comment period closes on February 15, 2014.
2. E-discovery will become a critical component of information governance, as organizations realize the benefits of storing only necessary and useful data. E-discovery tools such as technology-assisted review can streamline and expedite the organization’s search for this data. By using other e-discovery techniques, such as deduplication, organizations can eliminate excess data that no longer serves a business or legal purpose.
3. The accessibility of data will come under greater corporate scrutiny. In the wake of Edward Snowden’s 2013 leaks about the NSA surveillance programs and recent massive data breaches, corporate leaders will ask legal to audit data-security policies. For example, counsel may be asked to scrutinize the use of outside vendors to store data, including cloud computing providers; revise corporate privileged user policies; and review authorization, authentication, and permission policies.
4. Organizations will face the need to preserve, collect, and produce new types of data in regulatory investigations. For example, with the Dodd-Frank Wall Street Reform and Consumer Protection Act rules and accompanying recordkeeping requirements, regulators will expect the production of time-stamped records, pre-and post-trade communications, and audio recordings.
5. Lawyers who fail to meet their ethical obligation to maintain technological competence under ABA Model Rule or Professional Conduct 1.1 and similar state rules will face severe consequences.
6. Lawyers will figure out that technology-assisted review has more applications than just first-pass review, particularly when combined with other e-discovery tools, such as search terms. (Search terms aren’t dead, after all!)
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