Throughout the years, eDiscovery practices and processes have significantly evolved. Technological advancements, changing laws, and regulatory demands have created trends that all eDiscovery teams must be up to date on. Trends includes utilizing platforms that integrate several tools and are more user-friendly, court rulings that promote cooperation and preservation, and adopting a proactive mindset for project management and risk assessment skills.

 

As eDiscovery tools and trends continue to gravitate towards cooperation and integration, legal teams will need to change their approaches to utilize the best technology while maintaining efficiency. Adopting the following practices will help eDiscovery teams reach this goal.

Stay Up To Date with Evolving eDiscovery Technologies

Legal technology is the foundation of the eDiscovery industry and it is not going anywhere. For 2019, global investment in legal technology companies has exceeded $1 billion and practitioners should expect to see even more solutions and updates entering the market because of these investments. An important thing that eDiscovery teams should do is keep up with technological changes and trends to adapt their strategies accordingly. This is not a one-size-fits-all endeavor since every organization will have different budgets, workflows, and client demands.

However, many teams are moving towards using single platforms which offer a variety of services – from legal hold capabilities to document management functions. Additionally, data review software rooted in predictive coding is always a staple for eDiscovery legal teams because these solutions provide lawyers with the capability to review large data sets fast and with higher accuracy. Using these inclusive eDiscovery platforms promotes efficiency, organization, and compliance while reducing risks and delays. 

Be Aware of Relevant eDiscovery Laws

As with anything in the legal industry, remaining educated on relevant laws (both domestic and international) is crucial to an effective practice. Courts in the U.S. are constantly fine-tuning eDiscovery law through case rulings. An ongoing priority in this case rulings is data preservation. Organizations must keep track of data custodians in order to avoid potential spoliation sanctions if they fail to retain relevant data. However, federal courts seem to be seeking more curative solutions and cooperation between counsel. Many judges are also enforcing the proportionality principle more frequently. So, depending on the circumstances, a lawyer may be able to make the argument that a discovery request is not proportional to circumvent data collection and disclosure.

The global privacy trend also impacts American litigators since many organizations encounter data subject to other countries’ regulations like the GDPR. It is important for teams be aware of any privacy or preservation obligations that other laws implicate and how they interact with current cases. If a case does invoke compliance with another nation’s laws, lawyers should understand what data these laws do protect and how they interact with the case’s discovery demands. Cross-border discovery is an evolving body of law in the U.S. and will continue to develop in the coming years as global data sets increase and more countries enact privacy laws.

Understand Challenges and Create a Plan

Many eDiscovery challenges are associated with the increasing amount of data generated daily as new technologies and devices emerge. Between the increasing rate of data growth and legislative shifts, these changes can make it difficult to keep up with new laws, different processes, and increased demands. Researching and providing training are ways to stay on top of any changes in technology and laws that affect an organization’s eDiscovery practice. If it is budgetarily feasible, hiring employees to take on these roles would be beneficial. Deciding what stays in-house and what to outsource is also an important thing eDiscovery teams should consider. At a minimum, an organization should designate individuals to stay on top of these developments and continually provide updates to the team.

Being proactive and identifying potential challenges early on helps organizations avoid negative surprises. For example, implementing retention policies can help prevent future noncompliance with legal hold requests. Another common challenge is identifying data location and adopting appropriate collection methods, especially when data is scattered or derived from nontraditional data sources. Identifying data custodians and learning suitable collection methods are critical.

Conclusion

The common theme is to stay on top of eDiscovery developments and adjust strategies accordingly. Currently, this includes adopting a cooperative mindset and taking steps to utilize more user-friendly solutions while being mindful of deadlines and costs. Organizations should determine what makes an effective team by analyzing litigation demands and budget. Should the team utilize an alternative legal service provider or handle everything internally? How much IT support is necessary? What technology meets the team’s needs? What laws and regulations come into play? Can the team complete tasks more efficiently with less manpower? These are all important questions to ask in order to create the strongest eDiscovery team possible and keep current with relevant trends. If you found this blog informative, you may enjoy reading Top Five Mistakes Made When Collecting Data From Nontraditional Sources or The Epiq Angle Blog.