ED Predictions for 2008

Craig Ball's ED predictions in the latest issue of Law Technology News made me think about the more general trends we might see in 2008. The most significant driver right now is, I think , the trend best exemplified by the recent Qualcomm decision. Sanctions against clients and attorneys (both corporate counsel and outside counsel) for not properly handling e-discovery are increasing in number and size. Based on that observation, here are my 5 predictions for the overall direction of the e-discovery space this year.

 

1. The total amount of spending on e-discovery on large cases will level off or even dip slightly. Why? Several reasons. First the cost of e-discovery is being increasingly commoditized due to increased competition, not all of it realistic as George Rudoy points out in his post of Jan.5^th.  

Second,the trend that Craig calls “Folks just behave better when company comes”. The pressure of mandatory Meet & Confer conferences and the appointment of special masters is cutting short many of the previous lengthy and costly e-discovery battles. Finally, clients and attorneys both are going to take a longer harder look at how e-discovery is being done, especially at the “harvesting” level. The result will be a delay of many projects and a resultant dip in ED costs until the market corrects itself.

2. Tension between corporate counsel and outside counsel will increase. As corporations strive to cut costs they will standardize on specific vendors and solutions. In addition, as the Qualcomm cases illustrates, courts are increasingly holding clients and their inside counsel responsible for ED errors. That will lead clients to attempt to control the process much more than they have in the past.

3. Growth in the market will occur at the state and local level.  By the end of the year, 2/3 of the states will have made an ED specific rule change. Medium and small size firms as well as legal aid offices will be dealing with more and more ESI in practice areas like family law, landlord tenant disputes and even criminal law.

4. Lawyers will get a clue. Michael Arkfeld opined last year that the vast majority of attorneys are unprepared to deal with ED matters. That will become less and less common as the year goes on. Or else sanctions will get bigger and bigger.

5. Records Management policies will become the most important factor in controlling ED costs.  In house counsel at large enterprises already know this: ED is reactive, doc retention policies are proactive. Duh!!

Comments

[Sean Doherty]

On No. 5, it certainly makes sense to eliminate electronic information that a business is not required to maintain by law or regulation. But creating, maintaining, and implemented record management policies can be laborious for both record managers and end users. Hopefully, technology will start catching up to our capabilities to store information and allow retrieval tools that make e-discovery less costly and more efficient. Toward that end, the e-discovery institute (www.eDiscoveryInstitute.org) is doing some good research toward that end.