Each year, practitioners and the courts face data issues applying to collection, preservation, security, compliance, global practice challenges, and more. Some questions repeat or evolve, while others are entirely fresh stemming from emerging technologies or new digital habits. Attorneys must keep tabs on these matters and implement practice changes where necessary to remain effective, ethical, and compliant. Below are some key data trends from last year that will continue to develop in 2022 and reflection on how they influence eDiscovery expectations.
The Rise in Virtual Proceedings
While remote court was not a foreign concept prior to the pandemic, most jurisdictions did not include it in their regular operational models and only allowed it on occasion. Traditional in-person attendance for significant case events was the norm. Now, courts across the U.S. and the globe have realized how beneficial virtual proceedings can be when used for appropriate matters. Many facets of a civil case can be managed virtually – at least to some degree – which offers cost and time saving advantages to everyone involved in the process. This includes digitizing court appearances, motion hearings, courtroom directories, and more.
The remote court trend will continue in 2022 but the role it plays will vary depending on jurisdictional preferences. It is a safe prediction that usage will also be scaled and heavily rely on case factors. So many cases have faced delays and courts are still under capacity restrictions. Jurisdictions that continue to integrate virtual models into practice will help lessen some of this burden, but lawyers should continue to expect discovery delays until the backlog clears and expectations settle. Best practice during transitional periods like this is to factor additional discovery and case costs caused by delays into settlement evaluation. Using artificial intelligence (AI) tools for early case assessment can help predict costs and provide valuable insights on which cases should settle and which should weather the storm.
It is also important for practitioners to understand and prepare for discovery challenges that virtual court imposes. For example, with remote depositions an ongoing challenge has been how to present exhibits to a witness at the appropriate time. Depositions are often about strategy and provide the lawyer requesting them with the opportunity to carry out questioning in a certain way. Providing access to exhibits too early on can hinder this. Many have turned to solutions where the court reporter can control exhibits and present them in real time. Another option is having the deposing lawyer send the exhibits via chat features on the collaborative platform. Some jurisdictions have started testing remote jury pilot programs, so this would be an important tool to consider for trial exhibits if faced with a virtual or semi-virtual trial.
This is a multi-faceted and ever-evolving trend. With the continued rise in remote working and reliance on collaboration platforms across many industries last year, unique challenges presented at every step of the eDiscovery process. Most notable were preservation and collection concerns. Simply being aware of issues new data sources bring to the table helps contemplate where critical information may exist to determine if there will be any obstacles with retrieving, processing, and reviewing data.
Common challenges stem from working on personal devices lacking sufficient security, absence of strong device or app policies, data disappearing from dynamic chat or file sharing platforms, lack of standardized data formats, missing content, communication not in chronological order when retrieved, increased usage of things like emojis that invoke contextual review, and scattered data storage. Some resources to combat these obstacles include solutions that can collect and group messaging data to preserve context, archiving tools, partnering with providers with forensic expertise in collecting unstructured data while preserving chain of custody, and data mapping. Also remember that factoring in data trends and challenges at every step of the EDRM can have a positive downstream effect. This starts with strong data policies and information governance initiatives that evolve as communication habits or application preferences change.
With emerging technologies and eDiscovery, thinking more about the requesting party’s role can also increase efficiency in future matters. To be more effective, lawyers should contemplate what details to include in eDiscovery requests and anticipate obstacles that opposing counsel may face. Crafting requests in a more targeted fashion will provide better access to desired data. Court decisions on eDiscovery disputes in the space, specifically when it deals with emerging technologies that are harder to collect or review, will provide pointers on crafting requests to remain compliant and get what is needed for the case.
Emerging technology’s influence on eDiscovery will absolutely persist. One prediction is that there will be an increase in managed services partnerships to promote cost predictability, legal defensibility, and access to superior technology to combat collection or review hurdles.
Keep an eye out for any privilege developments in 2022, as this has been an unchartered area needing attention for years. Creating, producing, and reviewing privilege logs has historically been a daunting task and many have called for the need to reform outdated practices associated with this process. Some trends that could accelerate include the use of AI to limit the burden of privilege review or increased collaboration between parties about what information can be excluded from logs.
Legal as a Value Center
Legal transformation started to accelerate last year, as many placed higher emphasis on ways to make legal more valuable to the entire organization. This is a slow-moving trend that will keep gaining speed, but it is important to analyze how eDiscovery fits into the puzzle even at early stages of transformation initiatives. Litigation has and will always be one of the top areas legal departments spend their money, as eDiscovery and other case needs can prove to be very costly. Some practices to continue in 2022 that will guide transformation efforts include enhanced information governance programs, partnerships with full-service eDiscovery providers, yearly litigation-focused spend analysis, and metrics evaluations. Tapping into resources like this illuminates areas requiring attention and increases legal’s overall value, which culminates in cost-savings and risk reduction.
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