Discovery Resources

In December 2008, I was asked to develop a list of predictions regarding the e-discovery market in 2009. I was spot-on for 14 of 20 predictions, even including the silly ones. That is a 70% hit rate. Not bad….considering the year is not over.

Following were my predictions and what actually happened this past year:

1. White collar defendants will be sunk by criminal e-discovery evidence rules created by case law involving drug dealers and child pornographers. Although the first high-profile trial resulted in acquittal (Bear Sterns), the FBI conducted dawn raids and sweeps related to subprime lending, insider trading and other fraud. +1
2. The financial crisis will increase the volume of e-discovery in bankruptcy courts and cause such a backlog with the magistrate judges that the use of special masters and mediators will double or triple. The Sedona Conference® will be training special masters early next year. Anecdotally, some judges think there are already too many special masters. +1
3. In the wake of the financial crisis, law firms, IT departments and corporate legal departments will create a surfeit of top e-discovery talent as layoff by machete takes hold. Need I say more? +1
4. Credit-constrained vendors and service providers will not be able to scale on demand and will cut corners on redundancy and backup that will severely impact a client’s case. As early as LegalTech New York, clients of three organizations were left scrambling as businesses holding their data were suddenly acquired or out of business. +1
5. Software as a service (SaaS) will start gaining inroads due to lack of credit and a reluctance to make capital purchases. Our own experience validates this, as do former capital expenditure plays moving into SaaS. +1
6. Laid-off financial services professionals will join review teams to troll through instant messaging. OK, this never happened, but it was fun to think about.… +0
7. A major government official, board member, officer or partner will be held personally responsible for e-discovery spoliation or obstruction. Either the great state of Florida has a lot of spoliators or Ralph Losey just has a good eye. Bray v. Gillespie ensnared a partner. Swofford v. Eslinger hammered money sanctions on inside counsel. +1
8. Key cases will be used liberally: Lorraine will be used to challenge authenticity and admissibility; the Qualcomm CREDO will be issued; and Mancia, American Home Products and Qualcomm will be used to determine whether sanctions apply. Two out of three is not bad…while the CREDO was not issued, at least not with fanfare, Mancia was cited all over the place, and there were 18 cases in which admissibility and sanctions were impacted. +1
9. Family law will bring e-discovery to the state level, keeping solo forensics practitioners fully engaged. All forensic practitioners did well, even amid the doldrums of last year. +1
10. A magistrate judge will get so frustrated he or she will write a sanctions opinion with the words “COOPERATION PROCLAMATION” in all caps. Ok, joking again. But I will count Judge Andrew Peck’s Gross Construction case with his “wake-up call” for the Southern District of New York as an all-caps opinion. +1
11. There will be many more law schools offering e-discovery courses for credit. Hmmm. There are a few who are requesting copies of my book, A Process of Illumination: the Practical Guide to Electronic Discovery. Georgetown is touting its program more. Florida is really taking off, as is John Marshall. But so far it is not “many more.” +0
12. e-Discovery providers will discover diversity and alternative billing. e-Discovery providers are beginning to embrace alternative billing; diversity, not so much. +0
13. There will be a dramatic increase in international e-discovery (e-disclosure) requirements due to the financial crisis, arbitration, class actions and competition law. At ACC, the international sessions were packed. Also, a Fulbright & Jaworski survey shows a dramatic increase in e-disclosure requirements in England. +1
14. The number of practitioners sporting “technology counsel” titles will triple. OK, an easy one. There are three now. Big trend! The preferred title is “e-discovery counsel.” +1
15. The federal government will create an e-discovery response team in reaction to the recent White House archiving and SEC email issues. While not a coordinated team, there is a “group of groups,” according to our sources. +1
16. Web 2.0 will start to emerge as the next technical/legal challenge (dynamic, multi-company content). Yes, as the number of articles and CLEs on the subject continues to surge. +1
17. e-Discovery attorneys and providers will do more case-level pro bono work, supplementing educational and rule-making activities. At Corporate Pro Bono, Deloitte, Thomson Reuters, LexisNexis and Fios participated. +1
18. SOX guidelines will be applied to the legal hold process. Not yet, although I am not sure why not. +0
19. Insurance providers will get involved earlier and more visibly in the e-discovery process. Unless you are Marsh, not happening. +0
20. Law firms will be sanctioned for not having their own e-discovery houses in order. My focus here was on sanctions for cases where the firm was a party. Not yet. +0

Filed under Sound Evidence.

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