E-discovery frees lawyers to do what they do best: litigation.
If you’re not using e-discovery in your practice, you may be putting your firm and clients at risk. Whether working as a sole owner, a partner in a group, or legal counsel for a company, you and your clients will benefit from e-discovery as you prepare for legal proceedings.
Why is e-discovery important?
Currently a $10 billion market, electronic discovery (e-discovery) utilizes electronically stored information (ESI) found in the cloud, social media, intranets, personal devices, audio, video, text messages, and more to provide the most relevant evidence. E-discovery pulls data from a variety of sources and multiple geographic locations throughout the world, thereby changing how lawyers collaborate and represent their clients.
But it’s only been within the last 20 years that e-discovery has become an important tool. Previously, lawyers performed their discovery with paper documents stored in filing cabinets and desk drawers. And, with the advent of computers and word processing, it was transformed even more.
Sally Kane¹, an attorney who specializes in writing about legal careers, illustrates a dramatic transformation: “At one time, lawyers would literally appear in court hauling carts of boxed evidence in paper form. They would dedicate whole rooms of their offices to holding discovery. Not anymore. Discovery can be transmitted and maintained in electronic form these days. This hasn’t completely done away with those carted boxes and rooms because technology can and does occasionally fail, but the transmission of these documents relies more and more on electronics.”
In fact, e-discovery helps identify, preserve, collect, process, review and produce ESI and has become a critical component of litigation. With vast amounts of data in multiple locations, a manual search is impracticable. The problem is that the very thing that helps in the search (technology) is also making it more difficult as it outpaces training, even as discovery’s purpose of finding the most relevant information as quickly as possible has not.
Lawyers are left to change their paradigm. The old way of doing things uses manual processes, legacy tools, and a reactive, tactical response. The new world utilizes the automated, technology-enabled, and highly strategic.
What keeps some from using e-discovery?
Lawyers have always been cautious about taking risks. And that’s as it should be. Inherent in their role is the burden to assure services are beyond reproach. And, as technology evolves and becomes even more complex, their level of analysis must also increase before adopting new tools and practices. Even as they seek the most relevant data to support their cases, they remain concerned about possible penalties and altered evidence. Encryption, which is the process of converting information into a form that is unreadable by those who are not authorized for access, can alleviate some concerns.
Another reason some lawyers have been slow to adopt e-discovery is because they may not be comfortable with the technology. They may feel there’s no time to master this tool. Nevertheless, the faster technology evolves, the more quickly those who need legal services do as well. The pace has grown, along with the pressure to complete cases. It’s not a luxury to adapt to these changes but a necessity to provide the best representation possible.
Some lawyers even fear that artificial intelligence (AI)—or computers utilizing neural networks that mimic the functions of a human brain—will replace the need for human lawyers. Not so, according to Ryan Steelberg in Law Technology Today: “AI will not replace human lawyers, who will always play the central role in the practice of law. Rather, AI technology can help a people-powered legal team become smarter and more productive—enabling them to swiftly meet e-discovery, regulatory compliance, and business intelligence requirements. With AI on the job, legal professionals will be able to focus their valuable time on crucial tasks that make the best use of their education and experience.”²
Why is e-discovery necessary?
Consider how much the legal landscape has changed. For years, lawyers often searched files for supportive evidence that did not exist. Today’s ESI is a powerful tool that exposes facts in accessible conversations that did not exist in the past. People say things electronically they would never say otherwise, which means supporting evidence can be found and matters resolved much more efficiently. Personal emails and text messages, audio and video files, as well as phone messages are now available.
When performed correctly, e-discovery helps provide the most relevant information to support a case in a way that is both cost-effective and efficient. It helps to formulate more effective litigation strategies. So, whether it is performed in-house or outsourced, e-discovery can be critical to a case’s outcome. Furthermore, regulations now require it. Consider many of the cases recently in the news (e.g., the FBI’s allegations about Hillary Clinton’s emails and the U.S. Department of Justice versus Microsoft over access to emails). The courts readily accept and demand such evidence.
Keeping up with technology is also part of a lawyer’s general duties (American Bar Association, Rule 1.1 of the Model Rules of Professional Conduct). It’s imperative that lawyers keep up with technological advancements to provide the most competent representation they can.
How can the tension between the old and new be resolved?
Instead of working on tasks that might otherwise be automated, lawyers can focus on delivering strategic value to represent their clients with data and facts that support their cases. It’s important to identify the tasks that can be replaced and those that cannot. For example, legal teams can use AI to transcribe, translate, redact, and find data with more accuracy than ever before. By using e-discovery to enable better preparation, lawyers can focus more on their irreplaceable value: the strategies that help build a winning case.
Lawyers may prefer to manage the processing, review, analysis, and production aspects of e-discovery, while they outsource the preservation and collection parts. Still, as cases involving e-discovery rise, many lawyers are considering bringing e-discovery in-house, with hopes to reduce cost and increase efficiency.
E-discovery advocate Brian Schrader³ advises, “the hybrid approach may work best for some firms. You can work with a vendor to set up an end-to-end system and workflow that allows your in-house team to handle most cases internally, but with support and assistance from the vendor as needed. Depending on your overall needs, you might set it up where your internal team completes some tasks, while others are left to your vendor partner, or where your vendor partner simply provides a relief valve, bringing in more resources only when you need them.”
What does the future hold?
Just like technology, e-discovery is constantly changing. Eventually, robots will make it easier for lawyers to do their jobs by removing the more tedious tasks. Since AI learns from circumstances and finds ways to address them, it will capture content with ease and eliminate endless hours collecting information that is irrelevant.
There will be issues on quantifying the most relevant data, managing discovery-associated costs, and creating a realistic view of the data lifecycle. Global reach, too, will continue to increase complexity because as the data moves (virtually or physically), the jurisdiction and compliance will change as well. Technology means an ever-changing legal environment, with the mandate to continue growing and learning.4
This article is for informational purposes only.
1Kane, Sally. “What is an E-Discovery Professional?” The Balance Careers, Web. 18 May 2018.
2Steelberg, Ryan. “The Opportunity for Audio and Video in E-Discovery.” Law Technology Today. Web. 31 July 2018.
3Schrader, Brian. “Seven E-Discovery Considerations for Law Firms.” Law Technology Today, Web. 24 April 2018.
4Larson, Matt, et al. “The Future of EDiscovery | Deloitte US.” Deloitte United States, Web. 26 March.