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The eDiscovery Paradigm Shift

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Wednesday, December 28, 2011

eDiscovery and the Lawyer's Duty of Competence

The level of eDiscovery knowledge and experience among attorneys is widely varied. Some understand the issues in-depth, others have a passing knowledge of the basics, and other do not have even a beginner’s comprehension of the issues. Those who fail to acquire a working understanding eDiscovery issues are doing a great disservice to their clients; they may even be committing malpractice.

I often preach that there were two obligations highlighted in the 2006 amendments to the Federal Rules of Civil Procedure. First, is the duty to disclose ESI when required. As is widely known, when litigation is reasonably foreseeable a party must prevent the destruction of all ESI that may be discoverable. When requested in discovery, this ESI must be disclosed. This a generally accepted principle. The second obligation, and in my view equally as important, is to obtain ESI in discovery from opposing parties and nonparties. Without a good understanding of eDiscovery issues, lawyers are not prepared to meet either of these obligations.

The need to have a thorough understanding of eDiscovery issues arises out of the attorney’s obligation to the client. Each lawyer owes a duty of competence to the client. The American Bar Association’s Model 1.1 of the Rule of Professional Conduct reads:

Rule 1.1 Competence
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation

Comment 6 to ABA Model Rule 1.1 states: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”

ESI has the potential to play a role in nearly every case and thus all lawyers must be competent in eDiscovery. Even the business lawyer who does not litigate cases must prepare his client for eDiscovery. Both in-house and outside counsel have been sanctioned for failure to preserve and disclose ESI. Each case must be evaluated to determine the extent of the role eDiscovery will play.

The abundance of ESI, from email to Facebook, copy machines to cell phones, is so overwhelming that it is very rare when a case does not require an understanding of eDiscovery issues. Some lawyers may believe that eDiscovery issues do not permeate their practice or the kinds of cases they handle. They may believe that eDiscovery only applies when large parties do battle and have the resources necessary to hire experts to do ESI searches and to pay teams of lawyers to pour over the results for large volumes of records that are generated by these searches. This is not true.

eDiscovery is important in almost every case. The divorce lawyer will want the email, Facebook, Twitter and other ESI of the soon-to-be ex-spouse. The bankruptcy lawyer representing creditors may want to search for evidence of other assets. A criminal defense attorney will want to look for impeachment evidence. The treasure trove of information contained in ESI needs to be considered by every litigator.

Some lawyers may avoid eDiscovery issues because they fear it cost-prohibitive for their clients. eDiscovery does not have to cost the clients hundreds of thousands of dollars. Depending on what is needed in the case, less costly options are available. After a thorough analysis of the case, the lawyer can provide options to the client depending upon what the client can afford. Ultimately, this the cost of eDiscovery is the client’s decision, but only the lawyer who is thoroughly versed in eDiscovery will be able to explain the options, the impact each option will have on the case, and how the costs compare with the likely benefits.

I urge lawyers to grow in their knowledge of eDiscovery issues, to become inquisitive as to how it can be integral in the cases they handle, and to use this knowledge to be zealous advocates for their clients. There are many organizations that can help walk attorneys through these issues, but regardless, it is each lawyer’s ethical obligation to competently represent her client.

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Monday, December 26, 2011

Information Governance and eDiscovery Trends for 2012

2011 has been a transitionary year for information governance and eDiscovery.  Enterprises and governments worldwide have had to come to grips with the sudden acceleration of the use of social media, cloud computing, mobile devices and the resulting explosion in the volume of Electronically Stored Information (ESI).

Some are predicting the end of email in favor ot texting, Twitter and other social media electronic communications.  There are over 100 million users on Twitter each day with 35% utilizing a mobile device.  Facebook now has over 800 million users with 74% outside the United States and 350 million on mobile devices.  There are also over 100 million LinkedIn users worldwide as business social media and the assocication collaboration and communications is now required as a fundamental marketing tool for any serious business player.  Click Here for a more detailed graphic overview of the the growth of social media from the Search Engine Journal.

In addition to social meida, the fundamental infrastructure matured in 2011 to support more serious cloud computing.  Enterprises worldwide began to realize the dramatic cost benefits and potential business benefits of cloud computing.  As a result they gave serious consideration to private cloud implementations and are becoming more comfortable with moving some ESI to public Cloud Service Providers (CSPs) such as Amazon and Rackspace.  Microsoft launched Office360 to enable users to access the Microsoft Office Suite of products as Software-as-a-Service (SaaS) removing the expensive and time consuming software update dance that we all dread.  And, late in 2010, Apple released the iCloud platform for consumer cloud storage and set the stage for literally millions of iPhone, iTouch and Mac users to begin storing their pictures and other personal data in the cloud.

For anyone involved in the world of Information Technology (IT) whether as a user or a technologist, 2011 was definitely an exciting year.  For those of us in the information governance and eDiscovery business, 2011 marked a turning point, both literally and conceptually, for the monitoring, indentification, collection, processing, review and production of electronic evidence.

Is it no longer just an interesting discussion at the local pub to talk about the eventuality of social media as a source of evidence.  There were already close to 1,000 cases in 2011 where the judge issued a written opinion that mentioned social media. Likewise, information governance and eDiscovery in the cloud is longer just an interesting breakout session at tradehows to fill up your 'dance card".  Harvesting ESI from the cloud for the purpose of eDiscovery was a real issue in 2011 and therefore anyone that is serious about eDiscovery from a process, legal and technology standpoint, had better start to pay attention.

Given all of this (and more that I have not even mentioned), 2012 is going to be a banner year for changes in information governance and eDiscovery.  Following are my predictions:

Information Governance and eDiscovery Will Move to the Cloud
As more and more ESI moves to the cloud, the requirement to harvest this ESI "from the cloud" will also continue to grow.  However, there will be a tremendous amount of confusion in regards to exactly what information governance and eDiscovery in the cloud means.  Most, if not all, of the seroius technology vendors will announce that they are cloud ready or work in the cloud.  However, in most cases, this will mean that they are using the same old legacy technology and harvesting data "from the cloud" and processing it the same old way they have been processing ESI and paper for years.  Some of these vendors will have their own data centers and offer up information governance and eDiscovery as as Service.   However, this is nothing new.  The real change that we will witness in 2012 will be virtual technology (not hardware based) that enables users to move information governance and eDiscovery solutions/platforms to the cloud ESI and collects it and processes it in the cloud where it resides.  Physical location will no longer be an issue.  Collection and moving massive amounts of data will no longer be an issue.  The salability of hardward solutions will no longer be an issue.  Staging information governance and eDiscovery respositories in third party service provider data centers will no longer be required.

Enterprises will be able to move virtual information governance and eDiscovery solutions around their networks and private clouds as required to collect and process ESI where it resides. Cloud Service Providers (CSPs) will provide information governance and eDiscovery solutions as part of their standard IaaS and PaaS technology stacks.   Early Case Assessment (ECA) is going to take on a whole new meaning.  This approach is a major paradigm shift in the entire concept of how information governance and eDiscovery should work.  2012 is going to be an exciting year for information governance and eDiscovery in the cloud.

Semantic Search will Go Mainstream
The mystical world of semantic search and natural language processing technology will finally go mainstream in 2012.  New Information governance and eDiscovery technology vendors will emerge that are utilizing this technology as the foundation of their offerings or have seamlessly integrated this technology into their platforms.  Litigators will begin to understand the value of semantic search, courts will begin to accept the results and users will begin to demand its use.  Before the end of 2012, the industry may even recognize the term "Lucene".

Predictive Coding will Go Mainstream
Just like the mystical world of semantic search and natural language processing technology, Predictive Coding will also go mainstream in 2012.  New Information governance and eDiscovery technology vendors will emerge that have seamless integrated this technology into their platforms.  Litigators will begin to understand the value of Predictive Coding, courts will begin to accept the results and users will begin to demand its use.  Offshore coding will become less attractive as Predictive Coding will enable all but the very detailed review and tagging to be done automatically.

Informationn Governance and eDiscovery for Social Media Will be Required
Pushed by the ethical requirements for litigators to understand and utilize eDiscovery for social media and the practical requirements to ensure that all pertinent ESI is being collected and submitted, there will be a  major move by the courts and litigators in 2012 to ensure that social media evidence is being collected and submitted with an appropriate chain of custody and with access to metadata to ensure the validity of the evidence.  And, as a results, legacy ECA vendors will social media file types to their bag of tricks and numerous new Discovery tools for social media will be released in 2012.

End-to-End Information Governance and eDiscovery Solutions
As Early Case Assessemnt (ECA) vendors expand their product lines "right" into document review and case management and as document review platform expand their product lines "left" into ECA, the market is going to have a choice of more end-to-end information governance and eDiscovery solutions.  In addition, we will see the integration of data mapping, legal hold, semantic search, predictive coding, project management, workflow management and case management into these end-to-end solutions.

Litigator Will Become More Technology Savy
Out of both practical necessity and statute ordered requirements, litigators will become more technology savvy in 2012.  The days of the hands-off, don't bother me with the technical details for eDiscovery litigator are quickly coming to a close. 

Information Governance and eDiscovery Pricing will Drop
The move to the cloud along with easily scalable virtual solutions offered up as Software-as-a-Service (SaaS) will enable a dramatic price decrease for information governance and eDiscovery in 2012.

eDiscovery will become a subset of Information Governance
As I have predicted in previous years, as eDiscovery moves to the enterprise, eDiscovery will become a subset of Information Governance in 2012.

In conclusion, 2012 is going to be a very exciting year in information governance and eDiscovery.  Enjoy the rest of 2011 and strap yourself in for a wild ride in 2012.


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