Gearing up for E-Discovery in 2013; How to Prepare and What to Expect

With the holidays and 2012 safely in the rear-view mirror, it’s now time to turn our attention to what to prepare for in 2013. The best plan is try and get a jump start before the annual e-discovery conventions rear their gigantic heads and we are forced to put our noise-cancelling headphones on to drown out the competing messages from vendors and industry types.

No doubt there will be many hot topics proliferating and being echoed by everyone. You will know them when you hear them because you’ve heard them before. We will still hear about predictive coding (or computer assisted review if you will), knowledge-based documented assisted compliance reviews, auditory compliance discovery software, threshold reviews, chocolate reviews, vanilla reviews, strawberry reviews – you name it, someone will come up with a different kind of flavor! However the endgame to all this marketing fluff is selling product – you introduce a bit of FUD, provide some solution ideas and capitalize on where the market is moving. The real questions for consumers are where exactly is the market moving and will it truly affect you?

The very first thing you need to do is ask yourself an important question. What is important to improve upon in YOUR process? That should be where to start before analyzing any of these “new” technologies. I say “new” because let’s be honest with each other, very RARELY do you see a completely NEW product on the market with a brand new code base. Oh, you may see minor layout changes here and there, but something that is revolutionary in design? Good luck, those are in short supply. After analyzing your electronic discovery process as it currently is today, see if any of the upcoming or current technologies can help you with the following:

1) Cost Control – What can this software/hardware do for me in order to save money between my internal costs of running my own e-discovery processes or paying for outside counsel/vendors to handle it for me?

2) Nice to Have/Must Have – You will undoubtedly see new features everywhere you go. How well they actually work will be a different story. At the core of any e-discovery workflow, you will have to see if the product can and does operate on a level far exceeding your own in the following areas: creating/tracking litigation holds, collecting data over the whole enterprise (*in a forensically sound manner), processing that data for review, a clean and easy-to-use reviewable interface, and most importantly – allow you to get the data out of the tool in the format that you need.

3) Ease of Use – This is a very fine line to navigate for many companies. On one hand, you want the interface to be very easy to use, but on the other hand you do not want to give up functionality either. One adjective I hear a lot about certain software packages on the market is that it looks “sexy”, as in “Attorneys love the way it looks, it just looks sexy” or “It’s got a sexy interface”.

I don’t know about you, but if you’re relegating terms of sexiness to a software interface, there are support groups on professional attachments to software GUI’s that I can recommend.

4) Automation – This is where I see more technologies come into the limelight. As I’ve written about in the past, the toughest thing to automate in the e-discovery world is the collection process. There’s a reason why many companies move toward a collection process that is forensically sound – liability avoidance. But how many companies actually sell an e-discovery software package with a forensic backbone? Very, very few. Do you want to keep having employees self-collect, or do you really want to throw that junior I.T member onto the stand as your next 30(b)(6) witness perhaps exposing inadequacies in either your current workflow or software process?

As you can see, this list highlights some key points to consider when looking at the upcoming e-discovery year through a narrow perspective focus. Don’t be fooled by the marketing speak. Consider what “end to end” means and then do an actual onsite comparison through what is called a proof of concept. 2013 may bring new technologies, or maybe just rehashing of current technologies, but what will definitely change is your ability to filter out information that may not pertain to you and only consider those software packages which will actually help you.

David Speringo

David A. Speringo, JD, C.C.E., ACE, Senior Consultant/Engineer at AccessData. With ten years of experience in the e-discovery sector as a practicing attorney, electronic discovery consultant, and computer forensic specialist, David serves as a senior consultant on staff with AccessData. Prior to joining AccessData, Davis has held senior-level management and consulting positions at both ends of the e-discovery spectrum -- within a law firm and at a national e-discovery litigation support company. Within these roles he has taught classes providing continuing legal education for attorneys and has been a guest speaker at several legal conferences on the topics of litigation support technologies, best practices and litigation technology cost management. Within the forensic world, David is a certified computer examiner (C.C.E.) and has led forensic teams on the investigative acquisition and analysis of data for clients composed of several AMLAW 100 firms and Fortune 500 companies over the past 7 years. He received his B.A. in Political Science/History from the University of Connecticut in 1997, and is law degree (J.D.) from Roger Williams Law School in 2000.