Thought Leadership and Industry Trends
The role of corporate lawyers in the evolution of eDiscovery: A turning point
By Regina Chepalis, Managing Director CDS Mid-Atlantic
In the early days of eDiscovery, the amount of electronic information was relatively limited and easy to gather. The biggest concern was how to convert the electronic file into a usable format and review it. Today there is a massive amount of data that takes many different forms and is kept in multiple locations, often duplicated across many different custodians. Each data type presents its own challenges in terms of collection and analysis. Since the amount and complexity of data will only continue to increase, what does that mean for the future of eDiscovery and the role of lawyers in helping to use and manage information? We are at a turning point where lawyers in corporations need to think about not just where their companies’ data resides, but also what is in the data and how to manage it before it’s needed for litigation.
Corporate data over time
A company’s data used to consist of paper documents kept in filing cabinets and desk drawers. Starting in the late 1990s, it expanded to include email messages and electronic documents (Word, PowerPoint, Excel), which were stored on desktop computers and networks. When emails were first subject to discovery, they could be easily collected from one server where they were either printed and scanned or converted to an image and then reviewed for responsiveness after a discovery request was filed.
In thinking about electronic data, lawyers back then were looking for technology solutions to help them manage massive amounts of data to find more efficient ways to reduce the data set. As new features were added to review platforms, attorneys quickly figured out which features allowed them to improve the speed and accuracy of the review. The byproduct was not only time savings, but lower costs to review and produce relevant data.
EDiscovery started to get more complicated as corporations adopted new technology to help them with their business operations. As the cost of storage came down, corporations generated a lot more data that often resided in different places. Instead of one server or network, today data is stored in various locations like cloud storage, social networks, intranets, personal devices, audio/video repositories, text messages, and more.
Technology advances in storage allow corporations to take a “build more” approach, knowing that their employees will use it. Companies want real time information for employees and ultimately their clients. Younger generations are also driving development and use of more technology. Data and the ability to quickly access it and distribute it to internal and external clients is the way of the future for businesses.
What does this mean for legal?
In the past, many companies were adopting technology before law firms were using these systems and as a result, some outside and inside counsel didn’t fully appreciate what it meant for their clients to preserve and collect this data and how it would impact litigation. EDiscovery vendors got involved in helping to educate lawyers and companies about their data and developed new tools for collecting and analyzing electronic information.
Fortunately, lawyers have become more technologically savvy. Corporate attorneys are especially aware that they must understand where the data is and who has it. Of course, those answers will keep changing. Today there are silos of data, but they will be replaced by clouds of data presumably making information more easily identified. Data will continue to be stored in new ways (e.g. blockchain) so lawyers need to think beyond what they use today.
Corporate lawyers are increasingly working with eDiscovery service providers on better ways to identify, collect, store, and analyze data. Both the technology and the law are catching up to help lawyers manage data for litigation purposes, but what about the data that isn’t generally responsive or needed for pending litigation?
We are at a turning point. In most cases, companies are adopting and using technology without thinking about the electronic footprint that is being created and will be captured in the event of litigation. To what extent should corporate lawyers be involved in structuring and managing data in the company? The Information Governance Reference Model (IGRM) project was created to help stakeholders understand their role in information management and appreciate how true information management can only be achieved through successful collaboration with other groups across the enterprise. As discussed in a prior post, the current IGRM frames the role of in-house lawyers as being concerned primarily with litigation. However, lawyers increasingly are becoming an integral part of the business and technology sides of information management and it seems likely they will be involved in making more data decisions.
What does that mean for the future of eDiscovery? If more is done inside the corporate firewall to control what is created and stored, will volumes of non-responsive data be dramatically reduced? One thing we know for sure is that data will continue to grow. Corporations will have to find ways to manage data stores more efficiently and attorneys – both in-house counsel and law firm attorneys – will have to use all the available tools to get through increasing larger volumes of data.
CDS’ team of experts can help you plan for the future of eDiscovery today. Contact us to schedule an eDiscovery assessment.
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