Experts Predict Future of E-Discovery

Experts discuss trends in the field of e-discovery. Among their observations: The character of e-discovery data has changed and may include text, video, audio, social media, and new metadata structures within the same data artifact.

This will require new tools and methods to preserve, retrieve, and search and review these data types. In particular, text messages are now commonly sought in investigations, and are occasionally at issue in civil litigation.

The notion that all data could be useful ignores reality. E-discovery practitioners can use the new Federal Rules of Civil Procedure to their advantage. The amending of Rule 26(b)(1) addressing proportionality is due in part to the overwhelming growth in the volume of ESI that is potentially subject to discovery. The focus of Rule 37(e) on preservation efforts will result in analyses regarding whether a party took reasonable steps to preserve documents.

Rule 26(b)(1) leaves many areas open to debate, requiring a case-by-case analysis. Thus parties and courts will need to explore how best to apply proportionality, and this will lead to disputes and litigation.

The author concludes with some summary observations. The message experts are conveying, he says, is that legal departments should prioritize clearing out “ROT” (redundant, obsolete and trivial data) for more efficient e-discovery. They should keep abreast of the changing data landscape with the latest review and collection tools, understand the new FRCP Amendments, and increase project efficiency through integrated processes.