The Next Era of E-Discovery is Already Here

Association of Certified E-Discovery Specialists (ACEDS)
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Association of Certified E-Discovery Specialists (ACEDS)

I recently read Rob Robinson‘s terrific post on the four stages of the eDiscovery market since 2002. Not surprisingly, I really liked Rob’s analysis. It should also not be surprising (since I have known Rob for so long and always enjoy reading his musings) that he has equally inspired me to opine myself on the evolution of our industry. With permission from Rob, here is my take on the evolution of the industry, and the four stages he discussed. In particular, I will argue that Rob’s fourth stage, the “Next Era of eDiscovery,” is already here.

The first era noted in the article was “The Concordance Era: 2002-2009.” I was fortunate enough to start working for LexisNexis in 2006 when the company rolled out its Litigation Services business unit, which showcased the acquisitions of LAW PreDiscovery, Concordance, and the CaseSoft suite of products was inked. I was in the first class of new hires. We were led by Kevin Stehr, and because of his leadership, the business unit at that time had a strong mission, vision, and purpose. LexisNexis was the first company to show how data could be threaded together from processing to production. The combination of great products for its time, an outstanding team of professionals, and the newly amended Federal Rules that reflected the emerging world of ESI, made it an amazing time in the industry. Nearly every firm we spoke with wanted “on premise” software with “thick clients” because hardly any law firm wanted their data to travel outside of their “four walls.” What struck me most was the need for eDiscovery education.

What I quickly realized was that the market was looking for a holistic solution, and not just a piece of software. When LexisNexis started putting various software tools and research solutions together in a package called “TotalLitigator (some of you may remember that well),” the market responded favorably. Why? Because there was a desire around 2009 to fuse research tools and litigation software in a way that would reduce a law firm’s overall costs. It was also around this time that two very notable things occurred: Westlaw followed suit with its acquisitions of LiveNote and CaseLogistix, and the first of law firm consultants began looking to drive down LexisNexis and Westlaw research and litigation software costs.

Around 2012, the pendulum in the market began transitioning from an immature market to one in which there was not only more data flowing in every matter, but most law firm leadership decided that the lawyers should focus more of their time and money on practicing law rather than trying to be an eDiscovery vendor. Instantiating a dedicated environment, either in-house or through a private data center, was (and still is) a very costly venture. It is not just the hardware, it’s not just the software, but it is having the right blend of IT and Litigation Support resources to help run an environment appropriately. Because of the influx of data volumes, there was a shift to replace in-house tools like Concordance, and ship everything to eDiscovery providers who would submit bills to the law firms and then have it passed through to their corporate clients.

The next phase in eDiscovery was really the rise of eDiscovery Managed Services.  I caught the wave at just the right time again and joined Iris Data Services as one of their eDiscovery Managed Services Sales Engineers. Few would argue with my point that Iris disrupted the entire eDiscovery vendor market with both IaaS and SaaS eDiscovery offerings. The very thought that a firm or corporate legal department could have its own multi-tenant, private, and secure SaaS based eDiscovery environment at a fixed monthly fee was unheard of. There were eDiscovery service provider CEO’s I knew of that would repeat the phrase, “Nobody ever got fired for hiring Iris.” Everyone in the market wanted to know what Iris was doing and how they were pulling off “managed services.” We grew from just about a dozen clients before I joined, to nearly 60 by the time we were acquired by Epiq.

Iris fundamentally shifted the thinking in the market of transactional services by creating a business and partnership approach to managing the influx of data, unpredictable vendor costs, variable costs associated with project manager hours, and utter lack of transparency surrounding costs. Combined with the education to law firms that they could ethically recover their costs in an eDiscovery Managed Services partnership for, it was literally a win-win for everyone: the firm, the corporate legal department, and Iris.

After Epiq acquired Iris (and then DTI acquired Epiq thereafter), the market started shifting yet again. This time, there was an utter proliferation of vendors saying they were “doing” managed services and could offer up something “just like” Iris. Everyone said they could do SaaS. Managed Services became – for the most part – just a price play. The third phase seemed like the expansion of other players in the market looking to one-up the market leader with snazzy user interfaces, promoting their flavor of “AI” and “advanced analytics,” and creative price plays. Many VC backed eDiscovery software companies have been going to market promising to be the “Dropbox for Lawyers.” This began around the same time that Relativity dropped the announcement of RelativityOne and combined, this was a seismic shift in a maturing market. Where once there was an utter reluctance towards “the cloud,” there was now acceptance brewing like my expensive coffee.

To me, the Next Era in eDiscovery is already here. It is focused in on the corporate legal department. Companies like OpenText, Microsoft, and the Big 4 are all finding ways to help corporate legal departments take back control over their most prized possession – data. E-Discovery is no longer a mystical and disparate part of the corporate data’s lifecycle, but rather an extension of the desire to manage enterprise information so that by the time litigation does ensue, there is no longer any question about where the data is, who has the data, and the types of data. Corporate legal departments want to know they can search, collect, actively crawl, preserve, process, and sift through information without having to jump through massive software hoops. The uptick in hiring amazing Legal Operations professionals inside of corporate legal departments has helped control corporate legal department costs, and most importantly, they’re seeking transparency in fees by both law firms and vendors alike. It is the reason why matter management software has seen such a massive increase. It is equally the reason why a new generation of review-lawyer firms are cropping up which are focused on vastly increasing efficiencies, and reducing the overall review cost with help of advanced technologies such as TAR 2.0 and Continuous Active (or Machine) Learning.

The market is sophisticated now. This Next Era in eDiscovery is about creating holistic and comprehensive solutions that are primarily focused on solving the real problems that corporations need to solve to be successful. The Enterprise Cloud providers such as AWS, Azure, and Google Cloud Platform are well accepted by most law firms and corporate legal teams. We have come an enormously long way since the days of Concordance and Summation. It is the reason why the Federal Rules were amended in 2015. The market is now in a place where the next LexisNexis/Iris Data Services will be companies that can solve corporate legal department’s challenges tied to data by leveraging not just an integrated software offering, but real professional services and consultants who, “know a thing or two because they’ve seen a thing or two,” as Farmer’s Insurance says. The real winners in this Next Era will be the ones who truly understand how to secure, manage, search, cull, process, and produce information.

Think of it this way: the problems that we need to solve for today, with the real influx of data volumes that exist (not the artificially promoted scare tactics by sales and marketing teams) are how we handle much bigger issues such as:

  • do we know what data types each custodian has;
  • do we know where each custodian is storing data;
  • do we know how to collect all the various types of data;
  • do we know how to appropriately hold and preserve this data;
  • do we have an eDiscovery team that includes IT, Litigation Support, paralegals, attorneys, C-Suite executives – and Professional Services firms that offer eDiscovery software and services – that are meeting to ensure that there are mapped out procedures, protocols, and workflows around the data;
  • are we mapping out the data to reduce costs in crawling the multiple data sources per custodian; and
  • are we creating a compressive solution that uses professional services and software technology to manage, secure, search, crawl, and later process all of the information in a way that creates a holistic approach to manage corporate data.

The Next Era for eDiscovery is not another gimmicky eDiscovery software provider with slick marketing jargon, but rather it is time for corporations to take the lead on controlling, storing, and searching data and mostly securing the enterprise data. We are now in the Information Era, and the race is on to see what company will be the market leader in successfully partnering with corporations to create meaningful workflows and processes in a way that will help them exceed their critical success factors.

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