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Six E-Discovery Predictions For 2018

Fri Jan 12, 2018

The following article appeared in Law360 on January 11, 2018 and is reprinted here with permission.  

Six E-Discovery Predictions for 2018

With new rules and evolving technology, it is an interesting time for e-discovery. Practitioners are faced with the unique challenge of implementing these new rules and technologies while also controlling costs in the face of exploding data volumes for nearly every case. Today, the latest technologies and workflows are no longer the exclusive domain of large law firms and Fortune 500 companies. Almost any commercial litigation can involve terabytes of data. Most e-discovery software platforms offer multiple analytical tools, allowing counsel to slice and dice data in myriad ways. This means that on every case, every team member on e-discovery projects should be asking, “What is the best way to collect, process, review and produce documents in this matter?” Fortunately, for those of us in an industry that is rapidly changing and democratizing, the answer changes each time it is asked. That’s what keeps this otherwise staid field challenging and interesting.

This article looks at six predictions for how e-discovery will continue to excite and confound in 2018.

Predictive Coding for the Masses

As more e-discovery vendors offer analytics tools for lower rates and data sizes continue to grow exponentially, predictive coding will be used in more matters, and not just by the big firms. The year 2018 will see a widespread use of technology assisted review (TAR). In turn, this will open up a whole new challenge: inexperienced vendors and counsel getting it wrong and/or opposing parties convinced they’re getting it wrong. We’ll likely see some court orders reminding counsel that technology isn’t a silver bullet.

As knowledgeable counsel gain experience and refine their predictive coding workflows, there will also be a rise in the number of disputes about how to apply the technology. Can keywords be used prior to applying TAR? Must the responding party use continuous active learning tools? Were the “subject matter experts” expert enough to properly guide the system? Never doubt the legal industry’s ability to find a new area for dispute.

General Objection Smackdown

The 2015 amendments to the Federal Rules of Civil Procedure jettisoned “general objections.” No longer is the requesting party left guessing whether the producing party is objecting on principle or if actual documents are being withheld. For those engaging in discovery, it is clear that for some attorneys old habits die hard. But after a number of judicial opinions reminding counsel of these changes, judges and opposing attorneys are likely to have little patience for the continued use of these frustrating relics. 2018 should also see many states adopt the prohibition, and states such as California, which have long disallowed general objections, to begin enforcing the rules.

Phasing In Phased Discovery

Perhaps this is more hope than prediction, but phased discovery can be a practical tool for controlling discovery costs. Phased discovery is the practice of limiting early discovery to the most relevant custodian or the most dispositive issues with the hope that later discovery is limited or unnecessary. In practice, phased discovery provides a mechanism for the prompt exchange of documents while other discovery issues are resolved (or not), especially if there is a dispute over proportionality. Phased discovery is certainly not a new idea but with growing data volumes and the 2015 FRCP amendments it is an idea whose time has come to shine. However, there is a distinct drawback; phased discovery requires the parties communicate and at least attempt to cooperate — which is too often a foreign concept in litigation.

Everything in the Cloud

E-discovery hosting and review in the cloud offers distinct advantages for law firms and corporations: no on-site servers, no updates or maintenance, less technical staffing and all the best tools without paying numerous costly licenses. Cloud-based e-discovery will continue to grow, especially as small to medium-sized law firms find themselves in terabyte-sized cases. Vendors are likely to offer more do-it-yourself cloud-based tools as law firms and corporations look to control costs on low value/high data cases.

Even the old standard of in-house processing, Concordance, seems to be following Case Logistix and moving exclusively to the cloud. Options for e-discovery platforms not in the cloud are few.

Pricing Pressure

The per gigabyte pricing model may seem as firmly entrenched as hourly billing, but expect to see significant downward pressure on processing and hosting fees as data sizes continue to balloon on matters both small and large. As low and high value cases move to the cloud, vendors will face pressure to offer more flexible pricing. While it may not matter to the software and servers, to clients processing 100 GB of data, there is a big difference if the dispute is worth $200,000 vs. $20 million.

Attorneys at firms with in-house tools have gotten used to the price flexibility such systems have offered. Like in-house copy fees, attorneys could write down or write off hosting or processing fees associated with in-house tools. Vendors who appreciate the need for this sort of flexibility will foster long-term relationships.

New Technology

Smartphone apps, social media, enterprise chat (Slack or Skype), artificial intelligence, blockchain … E-discovery professionals will have to continue to adapt to new and emerging technologies. Corporations and counsel will have to understand both the technology and how their employees or clients make use of it — hint, it’s not always how you expect.

The practical impact of this understanding is knowing whether the data generated by these technologies actually contains relevant and responsive material. Even if relevant document custodians are using some technology to communicate regarding the issue at dispute, does that mean they are communicating in a substantive way that is both responsive to document requests and proportionate to the needs of the case? Do you know how to confirm before investing time and money in collections? If not, do you understand the technology well enough to convey it to opposing counsel?

Attorneys don’t have to be experts in all of the emerging technology their clients might use, a tall order for even the biggest e-discovery geek. They can retain staff, vendors or consultants with the expertise. But that isn’t a get-out-of-jail-free card. Those assisting the attorney need direction. Attorneys have to learn enough to understand the implications of the technology — or at least how to ask the right questions. One thing that hasn’t changed from the past few years is the importance of having someone at your company or firm focusing on this constantly changing field.

Erich Potter is discovery counsel in the Seattle office of Oles Morrison Rinker & Baker LLP, where he advises clients and case teams on e-discovery and document review strategy, tactics and organization in commercial litigation.