Change in eDiscovery: Mellow or Monster, Mandatory or Marvelous?

This article was posted as original content on the ACEDS Blog and written by Gavin W. Manes.

We’re kicking off this shiny new year with a look at change in eDiscovery, and we’ll be sharing a series of blog posts, webinars, and other resources about what change looks like, how to embrace it, and how best to handle it.

Introduction to Change

This first post of the series sets the stage regarding the general eDiscovery market. In the second, we’ll examine how to embrace change and how some of the apparent difficulties can be benefits in disguise. Next, we’ll cover each phase of change and describe the best ways to prepare for them with specific and practical tips for those who work in eDiscovery. In addition, we’ll discuss changes to forensic collections and investigations and the importance of experts since those processes can be critical to successful litigation. We’ll also reveal why you actually want to take that next vendor phone call and how talking with vendors can positively impact your eDiscovery processes regardless of whether you use their services.   

The eDiscovery Market

eDiscovery is an industry that, by most definitions, only has a few decades under its belt, but we all know something doesn’t have to be very old to change or grow a great deal. This short lifespan has not correlated to stagnation; think of how far removed we are from the early days of printing emails to the dozens of tools you can choose from when performing eDiscovery. 

Among other factors, eDiscovery has changed in typical case data size, the number of tools offered, the sophistication of users, and the percentage of cases that use it. Some current valuations place the market at $11 billion (source: Marketsandmarkets.com).  

Where is the Change?

So, we’ve come a long way, but what is changing about the eDiscovery market right now? How do those changes affect people using eDiscovery solutions?

First, it’s in the tools. While there are over fifty eDiscovery tools on the market, there is a current assumption that any given eDiscovery tool will allow a user to load data, perform review by tagging, coding, and foldering documents, that some type of analytics will be available, and users can create a production (or prepare one for someone else to complete). Although there are differences in workflows, user interfaces, pricing, and packaging, users expect they’ll be able to easily process, organize, review, and produce data with very little training and assistance.

Next, it’s the people. Almost all discovery has an element of electronic information, but that doesn’t mean eDiscovery software is always used. This means adoption of eDiscovery is – albeit slowly – becoming more prevalent, particularly in large firms. The ABA’s TechReport 2022 on Litigation and TAR states, “availability of litigation support software increased as firm size increased.” The report says 21% of solo practitioners have litigation support technology available, but for large firms (100 or more attorneys), it’s 75%. Even fifteen years ago, attorneys in practice probably remember arguing for using technology to make it through seemingly endless piles of documents.

Anyone who’s been part of the industry knows the change required to use current technology has not always been easy, but it’s becoming both expected and necessary in today’s world. Not only that, legal professionals are now expected to be able to use eDiscovery tools and perform basic data loading, review, and production themselves. There is a shift to self-service as firms and companies see the benefits of handling their own projects. Of course, there will always be a place for service providers and white-glove project management, but DIY eDiscovery is growing.

The third leg of change is the data. There is so much more data created now (one statistic put it at 1.1 trillion megabytes a day - TechJury.net) that it’s nearly impossible at this point to conduct a manual eDiscovery review. Even in a relatively small case with a narrow date range, putting eyes on each document is infeasible for either economic or temporal reasons (or both). That was certainly not the case when the eDiscovery industry was born or even in the years before social media was ubiquitous.

Where Will Change Happen in the Future?

We’re not here to read a crystal ball, but it’s clear that data sizes aren’t decreasing. You’re not going to produce fewer electronic documents in the coming years, so reliance on eDiscovery tools will increase to help wade through everything. Concurrently, this requires greater adoption of analytics – which has been much-discussed in the industry over the last decade and should see more use in small and medium-sized cases.

The trend of doing eDiscovery yourself will also continue, which means ongoing efforts to enhance the user-friendliness of eDiscovery software. The ultimate test is when someone unfamiliar with a tool can load, process, search, run analytics, and produce documents with little to no assistance. eDiscovery software providers are paying attention to the refinement of features that enable this ease of use.

Why is Change Necessary?

Because data is a part of almost every lawsuit and internal investigation, eDiscovery must continually evolve alongside that data, whether in type, size, or use. It’s no secret that change isn’t always the easiest thing. Still, some of the changes required to manage all this data and the requirements of handling electronic documents during the practice of law may mean additional efficiencies that haven’t yet been considered.

Stay tuned for our next installment about how to embrace change in eDiscovery.