E-Discovery Trends to Watch in 2012

The amount of information that is electronically stored will continue its explosive growth in 2012. In response, litigants and the courts will look for innovative ways to reduce costs while still effectively managing litigation and regulatory matters.

The author expects pricing models to come under increasing scrutiny, with clients demanding solutions that preserve the intellectual capital generated in previous matters and meet stringent defensibility standards. Decisions made in one matter will be leveraged in subsequent matters, thus reducing the total number of documents reviewed, and creating consistency and defensibility. Serial litigants will look to repositories and master databases that enable preservation of privilege determinations and responsive documents.

The author predicts that Judges Grimm, Scheindlin and others will take an aggressive stance on how electronic documents are used in the courtroom and on the scope of e-discovery demands that can be placed on litigants and subpoenaed non-parties.

There also will be renewed focus on the role of people in the e-discovery process. Clients will look for hybrid solutions that take into consideration both the intelligent application of technology to create consistency and transparency of process, and human expertise and judgment to ensure defensibility. The author expects law departments to explore new ways of inventorying their ESI, in order to build greater predictability. Data analytics combined with “defensible deletion” will become a way of mitigating risk and achieving more accurate budgeting and planning, resource allocation and general business decision-making.