Earlier this year LinkedIn kindly notified me of 10-year anniversary! It doesn’t seem that long ago that I was reflecting on a five-year anniversary. As we near the end of another COVID impacted year, it does give me time to reflect on some of the changes in eDiscovery I have seen with eDiscovery, and how my role with eDiscovery has evolved over the past five years.
Changes in eDiscovery ?
Since COVID there has been greater adoption of technology across the legal profession, with eDiscovery no exception. Generally, there has been further maturity of the market here in New Zealand in how to approach the eDiscovery process, together with some of the technology that is now available.
I have identified below some of the significant changes I have seen over the past 10 years. Most of these changes were probably applicable five years back, although have been accentuated further in the last five years.
Data Volumes continue to increase
The problem remains to be the increasing data volumes, providing new and evolving challenges for all discovery matters. We are all communicating differently than we did in the past, whilst the devices we use to communicate and store information are evolving exponentially.
Gone are the days of documents being in their hundreds, or even early thousands.
On most matters, the amount of key discoverable documents may not be too different to the numbers experienced previously. The issue is how do we get to them, as so much of the information will probably be irrelevant.
Further evolution of document review
You can no longer justify eyeballing every document, nor is it possible in most cases. The skill is to come up with methods and leverage the use of technology to get rid of what you don’t need so that you can devote your energies at only looking at what matters most.
Even though Technology Assisted Review (“TAR”) has been around for many years, it is now becoming more mainstream. It is a proven method to effectively get through large volumes of information, being considerably faster, cheaper and more accurate than any human review method !
By working smarter and embracing options like TAR, firms that may have limited resources can help produce faster, cheaper and better results than competitors that use more traditional methods.
More upfront work required
There is a growing importance to address the practical discovery requirements earlier in the process to help target the approach.
Far too often, many of the mistakes made in the discovery process are made at an early stage, which can prove very costly later in the proceeding. Some initial help can often save thousands down the track, not to mention lessening the burden of a challenging process.
Unless effectively undertaken the costs and burden of the discovery process can easily (and quickly) spiral out of control.
Further adoption of the Cloud
One of the lasting impacts of COVID has been the drive of the legal profession to embrace and use cloud technology. The cloud has made technology a lot more accessible, scalable and secure to a wider audience.
Most in New Zealand deploy eDiscovery software as a ‘hosted’ option, meaning you have the advantage of accessing from anywhere. This has only been highlighted further through the COVID experience. The adoption of eDiscovery software is helped by usually no internal outlay required by the firm, as the ‘pay as you go’ monthly cost can usually be disbursed to the client.
Continuing to evaluate eDiscovery software options
Since COVID-19, many are exploring the legal tech they use to see if it is still fit for purpose.
With so many eDiscovery software options available these days, it has never been a better time to embrace eDiscovery software as the options are superior, intuitive and cheaper than what was available only a few years back.
So much can change and quickly with eDiscovery software and even if you are currently completely satisfied with your existing eDiscovery solution, it is still important to continue to evaluate your options every 12-24 months.
You cannot stand still
What continues to be true is no matter your current approach to eDiscovery, you cannot stand still, as practices and processes are evolving all the time. It is important to remain curious and open to change. We should continue to ask – how can we do this better?
We have so much still to learn.
My role continues to evolve
As eDiscovery continues to evolve, so too is how I work.
I do more work these days providing strategic advice at the start of a matter, or even stepping in when a matter goes wrong, through to advising on the evolving eDiscovery software options.
There is probably a lot less comprehensive project management from what there was 5-10 years ago, and more working with organisations to devise a targeted approach at an early stage to best equip them to tackle eDiscovery. For many who want to continue seeing if there is anything they can do differently, it can be helpful to call upon a “fresh pair of eyes” when needed.
Thankfully, there is a lot less banging of the head against the wall these days – as most (definitely not all), are moving away from entrenched traditional practices to be open to more effective ways to tackle eDiscovery.
No doubt how we approach eDiscovery in another five years will have evolved even further. However, the objective of the discovery process will be the same in five years’ time (as it was five years ago) – “to get only what you need and do so it a way that is quick and cost effective – to help resolve the dispute”.
To do this it is important to be prepared to be more pro-active earlier in the proceeding to address how discovery will be tackled.
