eDiscovery is growing exponentially and the statistics to prove it are impressive.
- The worldwide legal market was worth almost $US550 billion as of 2009, most of it spent in the USA
- Gartner predicts annual growth of 14 per cent, with the eDiscovery market due to reach $1.5 billion next year
- Law firms are overloaded with eDiscovery work. A recent study by The Cowen Group found 70 per cent of law firms reported an increase in their eDiscovery workloads, up 30 per cent from their 2009 report.
What is causing this rapid growth?
Gartner’s 2011 report analysing eDiscovery software predicts continual growth over at least the next few years. Gartner attributes the growth to a couple of factors:-
- A continued increase in civil lawsuits coupled with more companies investing in archiving technologies to meet compliance obligations.
- Emerging communication mediums including social networks, which need to be stored.
How did eDiscovery become such an important part of the legal process?
In 1970, the Federal Rules for Civil Procedure (FRCP) were amended in the US to cater for the use of emerging technologies as evidence.
Another significant amendment came in 2006, when the Supreme Court amended the FRCP to include a category specifically for electronic records, naming emails and instant message chat as communications that needed to be archived in case of use as evidence in litigation.
An important case often cited as the catalyst for the use of ESI as evidence is Zubulake v. UBS Warburg LLC. The rulings in this case were ahead of its time, handed down in 2003 ahead of the FRCP amendments three years later.
Zubulake produced more than four times as many pages of email evidence as the defendant and demanded USB find the missing documents that corresponded with her own email evidence. The defendant’s request that the court order the plaintiff to pay for the cost of producing the evidence prompted the court to create a new seven point test for cost shifting. The defendant was ordered to cover the costs of producing the missing emails. A cost analysis was done only after the backup tapes were reviewed. After the seven point test was done, the defendant was ultimately ordered to pay 75 per cent of the cost of restoring and searching for data.
The seven point test for cost shifting, as well as the judge’s definitions of preserving data and accessible and inaccessible data, have been used as a reference for many cases following the Zubulake ruling.
What is the future of eDiscovery?
Predictive coding
Using computers more often to review documents looks set to be the way of the future. Once documents have been identified that are potentially relevant to the case, a lawyer will manually review a batch to train the software to recognise key phrases and information important to the case. This continues until the program creates a model that can identify the relevance of each document to the case.
It’s called predictive coding and it’s tipped to be more accurate than human review in identifying relevant documents for evidence and also significantly cut legal costs. A study published last year in the Richmond Journal of Law and Technology found predictive coding was able to identify an average of 77 per cent of relevant documents, almost 20 per cent more than humans could identify.
Earlier this year, a judge in the US approved the request of a defendant to use predictive coding to sort through its eight terabytes of preserved data. A lawyer for the defendant says using this technology will cost his client only a tenth of what it would have cost for lawyers to manually review all the documents.
Social media
While there are currently few laws detailing the use of social media content as evidence, it has already been used as evidence in court cases and the general consensus is that the law will soon catch up. Gartner predicts that by the end of next year, half of all companies will be asked to produce social media content in eDiscovery requests.
Social media evidence may prove harder to search and retrieve than other electronically stored information (ESI) as it can also include communication on employees’ private social media accounts. But that doesn’t mean courts will overlook this evidence; even if users have security settings and send their messages privately, they still forfeit their privacy as they are communicating online, which is essentially a public space.
Banning social media activity is one option favoured by employers but it’s unlikely to be very effective, especially outside of the workplace. Gartner’s vice president recommends companies err on the side of caution and treat social media communications like any other ESI. Companies are advised to use their current data management policy as a basis for establishing a social media retention policy and use the company’s code of conduct to educate employees on how they are expected to behave online.
Do you work in the eDiscovery services industry? What changes have you seen and what do you predict for its future? Please join the discussion in the comments section below.