Discovery is the term applied to the procedure in which parties on different sides of a lawsuit preserve, roundup, review, and exchange information and documents. State and federal rules of civil procedure dictate the extent to which parties must engage in discovery, usually in terms of specific times periods and types of information. eDiscovery is a term which came about only in recent years, and it describes the electronic discovery that is now routine in almost any type of legal case. eDiscovery comes in many formats, including email exchanges, databases, contents of computers, and social media posts. With the rise of information technology came new ways for people to exchange information and documents. Much of this information is pertinent to lawsuits, and so the specialized field of eDiscovery has evolved to address how to collect and exchange it between parties just as paper documents and non-electronic information has been exchanged for decades. Despite the prominence of eDiscovery in cases and courthouses across the nation, many firms and attorneys are still at a loss when it comes to understanding how eDiscovery works right now and what we can expect from it in the future.
eDiscovery is an ongoing process, and the methods involved are changing and evolving as rapidly as technology in general does. It used to be that most attorneys outsourced eDiscovery to third-party vendors who specialized in retrieving electronically stored information (ESI) from computers and eventually, cell phones and tablets. Today, while there is a proliferation of vendors specializing in eDiscovery, most attorneys need to understand it themselves or risk making serious missteps in their representation of clients. Indeed, many attorney bar associations have decided that keeping abreast with changes in technology is an affirmative duty of each attorney, and that includes understanding – at least to a basic extent – how eDiscovery functions. The Model Rules of Professional Conduct, which most state bar professional rules are based upon, cover this requirement now under Rule 1.1.
A greater number of firms than ever before are making the decision to bring their eDiscovery functions in-house through software platforms, or to pair their attorneys with IT specialists in-house or at outside vendors. There are two driving reasons for this recent trend. The first is an impetus to save money, especially after many firms were forced to cut costs and look for ways to reduce expenditures after the recession of the late 2000s caused wasteful and mismanaged firms to merge or shutter their doors completely. Firms quickly learned that it made poor financial sense to completely outsource eDiscovery processes when they had young associates on hand who had both the time and the inclination to participate in eDiscovery.
The second reason was to assert more control over the eDiscovery process itself, and therefore understand its outcomes better. Completely outsourcing eDiscovery made it difficult for attorneys to present that evidence in court competently to judges and juries, not to mention hard to defend against an attack of its validity by opposing counsel. When attorneys at the firm are more directly involved in eDiscovery and understand where the evidence is coming from and how it was acquired and preserved, their arguments in court are much more compelling.
Predicting the Future of eDiscovery
eDiscovery is expanding in two directions. The first is in the number of places where ESI is stored, which is growing rapidly. In addition to the rise of smartphones, we now have smart watches, smart televisions, and smart refrigerators. All of these devices are collecting data about their users, and all of it is potentially open to being collected and utilized in a lawsuit at some point in the future. Although we have yet to see a true proliferation in the number of cases where these types of data points are introduced as evidence, that day is surely coming soon. In the meantime, expect even more pieces of smart technology to pop up in everyday life.
The other direction, and arguably the more important and exciting one for attorneys, is in the ways in which eDiscovery processes are being applied. These are the tools which attorneys and outside vendors are creating and utilizing to analyze ESI in ways never before imagined. Many of these tools come in the form of programs with analytic capabilities approximating artificial intelligence. They can not only outperform humans – vastly – in their ability to analyze pieces of information, they also learn from their users and evolve into better programs over time. The future of eDiscovery will rely heavily upon these AI-like programs and their superior analytical capabilities.
There are so many recent eDiscovery startups that it is difficult to narrow down which are the most exciting or innovative. However, there are a few that pop to the forefront of the field, either because they have proven their worth to firms already or they bring startling developments to the field. One of the most well-known eDiscovery companies is Relativity, which until mid-2017 was known as kCura, until the company rebranded itself to be synonymous with its leading eDiscovery platform. Relativity is used by nearly all of the law firms on the AmLaw 200 list, because of its comprehensive and powerful capacity to organize and analyze ESI of virtually any type.
Some other notable eDiscovery startups are:
Epiq – used by many top firms and Fortune 500 companies, and developing rigorous security protocols to defend ESI against hackers both internal and external.
Catalyst – named Legaltech News “Innovation” award winner for two years straight, in part for the company’s commitment to making eDiscovery more economical for smaller cases and firms.
Text IQ – heavily focused on the use of AI to find patterns and relevant documents that human review consistently overlooks.
OpenText – another platform utilizing AI and machine learning to search, extract, classify, review, and analyze vast quantities of ESI with ease.