Based on insights gathered from legal industry thought-leaders, ongoing cases, and emerging trends at enterprise and law firm customers, Clearwell anticipates significant priorities in the year ahead to be a greater focus on automating forensically sound data collection techniques and applying proportionality as additional ways to control e-discovery costs. With the proliferation of social media and cloud computing, an increased emphasis on discovery for data outside the firewall is also expected.
Clearwell’s Top Five Electronic Discovery Predictions for 2011 include:
1.Changes in Data Collection Best Practices: In 2011, manual, forensic imaging will continue to take a backseat to more automated, forensically sound data collection techniques. Forensic (bit for bit) images have long been the gold standard for the legally defensible collection of electronically stored information (ESI) in response to legal proceedings. However, while forensic imaging will continue to be important in a number of discrete situations (fraud, misappropriation of trade secrets cases, criminal matters, etc.), it will largely be seen as overkill in most electronic discovery cases. Since imaging is both time consuming and highly manual, savvy organizations will increasingly use automated, forensically sound collection tools to perform targeted collections.
2.Proportionality Becomes Reality: Burgeoning data volumes, as seen in multi-terabyte (versus gigabyte) cases, means that the legal community will continue to search for ways to prevent electronic discovery costs from exceeding legal exposure and attorneys fees. Groups like the Sedona Conference will continue to push for better clarification within the legal community surrounding proportionality in order to keep the electronic discovery tail from wagging the litigation dog.
3.Collision of Cloud, Social Media and E-Discovery: The seemingly unstoppable migration of corporate data to the cloud, combined with the proliferation of social media applications, will continue to stress electronic discovery practitioners as they attempt to preserve, collect, search and process ESI from sources that aren’t traditionally managed behind the firewall. 2011 will undoubtedly be the first year that meaningful legal decisions crop up demonstrating the legal challenges associated with these new data storage paradigms.
4.Continued Consolidation in the Electronic Discovery Industry: Consolidation in the electronic discovery sector will impact market forces and the balance of power. The past year saw large technology vendors recognize the growing e-discovery market opportunity and aggressively acquire pure-play electronic discovery companies. In the upcoming year, we will continue to see large enterprise software companies enter the e-discovery sphere through acquisitions.
5.Global E-Discovery Matures: International jurisdictions will increasingly look to the United States (and the Federal Rules of Civil Procedure) as their nascent electronic discovery paradigms are increasingly stressed by the proliferation of both ESI and discovery disputes. The recent Goodale case out of the UK, and impending procedural changes to the e-Disclosure Practice Direction, demonstrates how the global community is rapidly maturing along the electronic discovery continuum.
Over the past few years, e-discovery has become ensconced as a core business process, with enterprises and government agencies taking the proactive approach of bringing e-discovery in-house and deploying best practices to gain greater control over the attendant costs and risks, said Dean Gonsowski, Esq., vice president of e-discovery services at Clearwell Systems. Even as internal processes become more sophisticated in today’s enterprises, the industry will face an array of new challenges such as evolving legal standards and the proliferation of new data forms requiring in-house legal departments, government agencies and law firms to adapt once again