November 1, 2014

E-Discovery Times Are a Changin’…Or Are They?

I just had time to sit down and digest the annual Fulbright and Jaworski Litigation Trends Report for 2011 and it gave me much food for thought. For example, only 6% of the respondents correctly predicted a decrease in litigation in the 2010 survey, however most businesses in the US and UK faced slightly less litigation in 2011.  This decrease was offset by an increase in regulatory activities and internal investigations, which can certainly be attributed to a global economy that continues to face unprecedented upheaval and economic crisis.  We all agree that litigation is counter-cyclical, but what explains the expectation of 28% of respondents that litigation will increase in 2012? Well…

Many respondents expect that stricter regulation will drive additional litigation next year.  Both the sluggish economy and potential growth in retail, energy and manufacturing were also cited as causes of increased litigation in 2012.  These expectations are certainly supported by the fact that contracts and labor/employment continue to dominate the litigation landscape.  However, of the 405 survey participants, the majority believes the number of disputes will actually remain unchanged; which could  indicate the expectation of continued expenditures of at least $1M annually for over half of the sample group.  While the survey doesn’t break our absolute dollars for 2011 it does cite electronic discovery as the primary area for increased spending in 2012.  While these expectations for 2012 are not a surprise, they do reinforce the impression that the market is still grappling with the twin challenges of increasing data volumes and the complexity of data types and locations (e.g. tablets, smart phones and the ever-popular “cloud”).

The final section of the survey is dedicated to e-discovery, and this year asks a question directly from the Sedona Conference® Cooperation Proclamation: “In the past 12 months, has your company made a concerted effort to be more cooperative or transparent with opposing counsel in your conduct of discovery?” A subjective question can only achieve a subjective response, but one particular response is interesting.  Almost 40% of the respondents assert they have made no effort to adhere more strongly to the tenants of the Cooperation Proclamation.  Be it strategy, awareness or just plain old aversion to change, this practice seems counterproductive given broad judicial endorsement of transparency and cooperation.

Perhaps reflecting or even responding to this refusal to cooperate, The Federal Rules Advisory Committee (“Advisory Committee”) met just last week in Washington, D.C., primarily to discuss a sanctions-based approach to enforce certain preservation practices within e-discovery.  Depending on how such a rule is crafted it could force parties with e-discovery obligations to take preservation even more seriously than many do today. It’s hard to imagine a more extreme approach than “collect everything and sort it out later”, but some may expand current practices to avoid sanctions resulting from negligence or bad faith.  In my opinion it is hard to see stricter penalties resulting in more cooperation – and they would more likely portend additional time, effort and ultimately expense associated with e-discovery.

Finally social media and mobile device usage was also addressed in this year’s Trends Report.  There has been a material increase in companies that have no social media restrictions in place to limit employee access to sites such as, Facebook, Twitter, Youtube and Tumblr. We have all read articles reporting the surge in importance social media plays in family law and even the criminal context as an administrative clerk recently found in the first case related to the UK Bribery Act.  In the survey, 18% of companies reported having to collect from employees’ personal social media accounts for litigation. It seems to me that this 18% is probably just the tip of a looming iceberg and even if companies get wiser about limiting social media access at work, the need to collect from this medium is just going to increase.  Better start swimming or you’ll sink like a stone, so to speak.

So in some ways, the more things change, the more they stay the same (see: lawyers’ inability to cooperate), but in others the changes are coming fast and furious (see: the above regarding social media). In yet others we’ll have to wait to see what happens and which way the juggernaut of the global economy decides to turn before we know anything more. In any event, it continues to be an exciting place and time in the e-discovery industry.

Devin Krugly

Devin Krugly is the VP of Marketing and Business Development at AccessData. He joined AccessData from ExxonMobil to guide the growth of the company’s marketing initiatives, lead generation and to modernize the company’s global VAR and partnership network. Prior to his current role, Devin led several large multi-million dollar solution design and implementation projects for the world’s largest publically traded company, ExxonMobil. His most recent experience was a three year effort to grow an in-house e-discovery team with proper tools to successfully execute data collection and processing related to litigation. The scope of that project included a year-long process to evaluate potential vendors which led to 24 months of assessing fit and purpose of an e-discovery team and design of an IT infrastructure to support the team’s activities. Prior to his role with ExxonMobil, Devin held a position with Halliburton in their Global IT Security department working on NISPOM compliance and developing best practices related to government classified information. Devin also served in the US Army and was deployed to Bosnia-Herzegovina in support of operation Joint Endeavor/Joint Guard during peace-keeping operations in that region.

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