E-discovery trends can move at the speed of sound. Most law firms are already using some form of e-discovery technology, and as its convenience continues to make the lives of paralegals easier, it also makes it more complex at the same time. 2016 is going to be a big year for e-discovery, with new amendments to FRCP, the developments in the technology and new trends in how it is used changing the shape of discovery in general. But what should you be paying attention to in order to stay ahead of the game? Here are the biggest e-discovery trends to be prepared for this year:
A Push for Better Data Deletion Policies
Just like shredding information could get a business in trouble in the past, deleting data from the computer can get a business in trouble today, especially because it is possible to recover that data in some instances. But not every business deletes something important intentionally. Many delete data without realizing that they were not supposed to delete it yet or that deleting it could have serious implications in the future. This means that any law firm needs to have a comprehensive and strictly followed data deletion policy. What does this policy cover? What can be deleted, what should never be deleted, and, if something can be deleted, when it is appropriate to delete. If these guidelines are clearly stated and if they are followed carefully, you will actually have a defense for why data was deleted. If something is deleted that was not relevant at the time, but is relevant now, if you do not have a clearly-written policy, the client could be in trouble. Be sure to check the relevant court rules (either state or federal) for recent amendments related to data preservation and spoliation.
Ability to Prepare for Cases before They Are Brought
There are going to be some clients that are simply more likely to encounter a court case than other clients. E-discovery technology gives law firms, and their clients, the opportunity to start preparing for any possible court cases in advance of the action. This ranges from amassing data, emails, spreadsheets, and communications that could be relevant to a court case to searching through all of that data to find pertinent information. This is a process that would once take a significant amount of time—time that usually was considered a waste until a court case actually arrived.
Predictive Coding Will Continue to Drive E-Discovery
Predictive coding is a process by which e-discovery technology reviews all documents in the system and automatically determines which are the most relevant, but not without some upfront work by the legal team to set definitions for relevance. Most e-discovery technology uses algorithms, not unlike the algorithms used by search engines, in order to do this. While this technology is by no means entirely new (it has been used for at least three years and in 2012 was ruled to be a perfectly practicable substitute for manually reviewing all of the data), it is only becoming more and more common as technology progresses. While there are still some law firms that do not like using predictive coding when reviewing their discovery, there are plenty of law firms that do use it.
These are the three biggest trends to be watching for this year. Of course, a concern for better cybersecurity and policies for closing and mitigating cyber breeches will also be important this year. Paralegals will either have to find a way to adapt to this new technology or they may begin to see many of their duties passed off to an e-discovery team in the future. No matter what exactly the future holds for e-discovery, we know it will fundamentally shift the way law firms prepare for their cases.
About the Author
Ann Pearson is the Founder of the Paralegal Boot Camp, specializing in training for paralegals that focuses on the important paralegal skills not taught in certificate programs.
Ann started her paralegal career as a litigation paralegal and then was a manager of paralegals for many years prior to starting her own company in 2010. When she’s not working, you can usually find her somewhere near an ocean – either scuba diving, boating, cleaning up a beach, or volunteering to help save sea turtles.