The Changing Landscape of eDiscovery

The eDiscovery landscape is a never-ending, constantly evolving environment. Each day, more challenges arise from the sheer breadth and scope of its intricacies ' made even more complex by the introduction of new communications technologies and practices.

One of most quickly evolving areas of eDiscovery, however, is centered around the relationship of in-house counsel and law firms. The best way to understand where things are going is to first look at where we've been.

Things Have Changed

Categorically speaking, it used to be that corporations would essentially rely on outside counsel to lead all things related to discovery. This included collection management, data processing, culling, review and production and all the technology decisions around this process. However, to execute the functions related to eDiscovery, law firms would (in most cases) outsource the work to litigation support companies. Law firms, through whoever was assigned the task (either the litigation support department [if it existed], litigators, partners or paralegals), would instruct the corporation on the process while vetting various vendor technologies and services that would be used in the matter. So, we had a situation where the level of influence on the process rested almost solely on the shoulders of outside counsel.

But through the years things started to change on two fronts: Corporations starting taking more control of the discovery process, and many law firms began bringing discovery technologies in house. What caused these changes? There are a number of reasons.

Education

The single most overriding driving force is education. Just like with any new industry's technologies or services, there is a maturation process. Gone are the days where this process was “magic,” only to be understood by a small community of specialists. Case by case, legal teams became more sophisticated. They climbed the learning curve via tradeshow attendance, reading white papers, watching Webinars, participating in CLE, doing research, joining professional organizations and experimenting with various technologies.

Through this process, just like with any new technology, users migrated to the top of the bell curve where industry-wide adoption occurs. And with this maturation, legal teams could increasingly navigate the previously murky waters of eDiscovery on their own.

Outside of education, there are drivers specific to each entity that led these changes.

'Moving Upstream'

First, let's look at the corporation and why more of the discovery process is “moving upstream”:

• The enterprise is the entity that has the most to gain or lose in litigation, sometimes even facing a “bet-the-company” situation. Given this, inside counsel and C-Level executives necessarily wanted to be more involved in the process.
• Corporations foot the bill for discovery. And, as the volume and complexity of electronic document collections continued to rise, so did discovery costs. With any escalating cost line item, corporations pushed back, sought changes, and/or brought the right technologies in-house to streamline processes and reduce costs.
• It's the corporation's highly sensitive data that is released to the outside world ' with no strong assurances as to how many hands would touch it, how many eyes would see it, and how many copies existed. Due to prevalent scatter-shot collection practices, this information can easily include strategic communications, technology blueprints, unrelated financial and human resource documentation, embarrassing employee activity and communication, and various “secret sauce” data that is otherwise highly protected from the outside world. Coupled with the reality that upwards of 95% of collected data is not relevant or responsive, corporations found they were unnecessarily sharing sensitive information that should never have left the enterprise.
• The final driver is related to new technologies and business processes. Through the years, discovery activity ' particularly collection ' has matured. The old-fashioned way of collection used to involve IT teams going from desktop to desktop and/or server to server, making copies of all possibly responsive data (or, oftentimes, for the sake of ease, entire hard drives would be collected). Today, although some of that still takes place, discovery is becoming more and more ingrained in normal business processes. Technologies now exist that sit on top of data archives, which enable inside legal teams to query the enterprise to collect forensically sound data without ever disturbing the IT department or custodians. An additional measure to protect data, reduce costs and streamline the process is that many corporations are even hosting discovery data in-house and granting access to outside counsel during the review process. This way, no sensitive documents leave the enterprise unless they are deemed responsive to discovery.

Next, let's evaluate the changes within law firms' and their ever-increasing trend of insourcing:

• Law firms are becoming experts in eDiscovery. Litigation support professionals are increasingly regarded as go-to people and are serving more of a consulting role to their firms. As such, law firms are not relying on outside vendors for guidance as frequently as they used to.
• They can also position this part of the litigation process as a value-add to their corporate clients. Having the ability to leverage a savvy team of discovery professionals is a great differentiator when corporations evaluate which firms to use on certain matters.
• It is becoming more and more acceptable for law firms to bill the client for discovery services. Adding this line item to the services that law firms provide is even more critical today, given that they are being pressured by their clients to reduce costs in other areas.
• Insourcing, if done correctly, has proven to help corporate clients reduce discovery costs. By having the right technology and processes in-house, law firms can eliminate the margins that are paid when outsourcing to vendors. Of course, this greatly depends on the quality of the technology that is brought in-house. Many firms still see value in outsourcing this work to litigation support companies in order to leverage those companies' infrastructure, expertise, project management and data analysts. However, as collected data becomes more structured and better technologies are offered, more and more firms are finding insourcing a viable option.
• And last, by insourcing, law firms can oftentimes greatly streamline the process. By having the right technologies and resources in-house, they eliminate the RFP process, the need to send data back and forth to vendors, and other inefficient steps inherent to outsourcing. Today, many firms can receive data from their clients, and immediately load it into their internal discovery processing, culling and review technologies. Often, this enables legal teams to complete the discovery activity in the time it would have typically taken just to begin the outsourcing process.

Final Changes

These changes within each entity ' corporations and law firms ' are creating a final change to discovery: Improved collaboration and communication between the two. The proverbial “line in the sand” is eroding. The process of issuing a discovery request to the corporation and, in turn, the corporation returning ready-to-review-for-production data will continue to blend into a single, efficient business process. Ultimately, data will be indexed on-the-fly as it is created, instantly conceptualized and data mapped, identified by communication threads. All departments of the organization will have intelligent access to that data including: records management, compliance, legal, and more. It may take years for these changes to affect most corporations worldwide.

However, a time will come ' after major technology investments and changes to business processes ' when document creation all the way through discovery will be streamlined in such a manner that costs will be reduced while increasing productivity and collaboration between all entities along the discovery life cycle.

In many situations, the old adage that “the only thing constant is change” holds true. The discovery industry is no different. Just like with any new technology or process, things move from early adopters to widespread maturation and change. The main drivers of this phenomenon are almost always education, adoption, and commoditization. And in the case of discovery, all have shaped the industry as we know it today.

Kevin Carr is president of InterLegis, Inc. (www.interlegis.com) and has more than a decade of experience in the discovery technology industry. He has consulted with a wide range of clients worldwide, including AmLaw 100 law firms and Fortune 500 companies.

The eDiscovery landscape is a never-ending, constantly evolving environment. Each day, more challenges arise from the sheer breadth and scope of its intricacies ' made even more complex by the introduction of new communications technologies and practices.

One of most quickly evolving areas of eDiscovery, however, is centered around the relationship of in-house counsel and law firms. The best way to understand where things are going is to first look at where we've been.

Things Have Changed

Categorically speaking, it used to be that corporations would essentially rely on outside counsel to lead all things related to discovery. This included collection management, data processing, culling, review and production and all the technology decisions around this process. However, to execute the functions related to eDiscovery, law firms would (in most cases) outsource the work to litigation support companies. Law firms, through whoever was assigned the task (either the litigation support department [if it existed], litigators, partners or paralegals), would instruct the corporation on the process while vetting various vendor technologies and services that would be used in the matter. So, we had a situation where the level of influence on the process rested almost solely on the shoulders of outside counsel.

But through the years things started to change on two fronts: Corporations starting taking more control of the discovery process, and many law firms began bringing discovery technologies in house. What caused these changes? There are a number of reasons.

Education

The single most overriding driving force is education. Just like with any new industry's technologies or services, there is a maturation process. Gone are the days where this process was “magic,” only to be understood by a small community of specialists. Case by case, legal teams became more sophisticated. They climbed the learning curve via tradeshow attendance, reading white papers, watching Webinars, participating in CLE, doing research, joining professional organizations and experimenting with various technologies.

Through this process, just like with any new technology, users migrated to the top of the bell curve where industry-wide adoption occurs. And with this maturation, legal teams could increasingly navigate the previously murky waters of eDiscovery on their own.

Outside of education, there are drivers specific to each entity that led these changes.

'Moving Upstream'

First, let's look at the corporation and why more of the discovery process is “moving upstream”:

• The enterprise is the entity that has the most to gain or lose in litigation, sometimes even facing a “bet-the-company” situation. Given this, inside counsel and C-Level executives necessarily wanted to be more involved in the process.
• Corporations foot the bill for discovery. And, as the volume and complexity of electronic document collections continued to rise, so did discovery costs. With any escalating cost line item, corporations pushed back, sought changes, and/or brought the right technologies in-house to streamline processes and reduce costs.
• It's the corporation's highly sensitive data that is released to the outside world ' with no strong assurances as to how many hands would touch it, how many eyes would see it, and how many copies existed. Due to prevalent scatter-shot collection practices, this information can easily include strategic communications, technology blueprints, unrelated financial and human resource documentation, embarrassing employee activity and communication, and various “secret sauce” data that is otherwise highly protected from the outside world. Coupled with the reality that upwards of 95% of collected data is not relevant or responsive, corporations found they were unnecessarily sharing sensitive information that should never have left the enterprise.
• The final driver is related to new technologies and business processes. Through the years, discovery activity ' particularly collection ' has matured. The old-fashioned way of collection used to involve IT teams going from desktop to desktop and/or server to server, making copies of all possibly responsive data (or, oftentimes, for the sake of ease, entire hard drives would be collected). Today, although some of that still takes place, discovery is becoming more and more ingrained in normal business processes. Technologies now exist that sit on top of data archives, which enable inside legal teams to query the enterprise to collect forensically sound data without ever disturbing the IT department or custodians. An additional measure to protect data, reduce costs and streamline the process is that many corporations are even hosting discovery data in-house and granting access to outside counsel during the review process. This way, no sensitive documents leave the enterprise unless they are deemed responsive to discovery.

Next, let's evaluate the changes within law firms' and their ever-increasing trend of insourcing:

• Law firms are becoming experts in eDiscovery. Litigation support professionals are increasingly regarded as go-to people and are serving more of a consulting role to their firms. As such, law firms are not relying on outside vendors for guidance as frequently as they used to.
• They can also position this part of the litigation process as a value-add to their corporate clients. Having the ability to leverage a savvy team of discovery professionals is a great differentiator when corporations evaluate which firms to use on certain matters.
• It is becoming more and more acceptable for law firms to bill the client for discovery services. Adding this line item to the services that law firms provide is even more critical today, given that they are being pressured by their clients to reduce costs in other areas.
• Insourcing, if done correctly, has proven to help corporate clients reduce discovery costs. By having the right technology and processes in-house, law firms can eliminate the margins that are paid when outsourcing to vendors. Of course, this greatly depends on the quality of the technology that is brought in-house. Many firms still see value in outsourcing this work to litigation support companies in order to leverage those companies' infrastructure, expertise, project management and data analysts. However, as collected data becomes more structured and better technologies are offered, more and more firms are finding insourcing a viable option.
• And last, by insourcing, law firms can oftentimes greatly streamline the process. By having the right technologies and resources in-house, they eliminate the RFP process, the need to send data back and forth to vendors, and other inefficient steps inherent to outsourcing. Today, many firms can receive data from their clients, and immediately load it into their internal discovery processing, culling and review technologies. Often, this enables legal teams to complete the discovery activity in the time it would have typically taken just to begin the outsourcing process.

Final Changes

These changes within each entity ' corporations and law firms ' are creating a final change to discovery: Improved collaboration and communication between the two. The proverbial “line in the sand” is eroding. The process of issuing a discovery request to the corporation and, in turn, the corporation returning ready-to-review-for-production data will continue to blend into a single, efficient business process. Ultimately, data will be indexed on-the-fly as it is created, instantly conceptualized and data mapped, identified by communication threads. All departments of the organization will have intelligent access to that data including: records management, compliance, legal, and more. It may take years for these changes to affect most corporations worldwide.

However, a time will come ' after major technology investments and changes to business processes ' when document creation all the way through discovery will be streamlined in such a manner that costs will be reduced while increasing productivity and collaboration between all entities along the discovery life cycle.

In many situations, the old adage that “the only thing constant is change” holds true. The discovery industry is no different. Just like with any new technology or process, things move from early adopters to widespread maturation and change. The main drivers of this phenomenon are almost always education, adoption, and commoditization. And in the case of discovery, all have shaped the industry as we know it today.

Kevin Carr is president of InterLegis, Inc. (www.interlegis.com) and has more than a decade of experience in the discovery technology industry. He has consulted with a wide range of clients worldwide, including AmLaw 100 law firms and Fortune 500 companies.