Why E-Discovery Still Hasn’t Changed that Much in 5 years

by Exterro, Inc.

The continued explosion of data! Additional, new and scary data types! New FRCP e-discovery amendments! You would think with all these new revelations e-discovery would have changed a lot in the past 5 years, right?

One would think so, but it seems like from a macro point of view, everything on the surface looks quite similar. How do I know this? Well, let’s look back at 5 e-discovery trends we recognized from 2012 and if they still apply today.

Take a look and let me know if you don’t think all of these 5 true still ring true:

Trend #1: E-Discovery Education

2012 Look Back: “Knowledge is power in e-discovery. The lack of understanding around basic e-discovery principles, even among experienced lawyers, is truly remarkable. Fortunately, those who do want to learn about e-discovery – everything from the latest case rulings to the newest e-discovery technologies – have plenty of resources at their disposal. Whether through blogsarticleseducational webcasts or conferences, there are countless e-discovery experts who have dedicated themselves to improving e-discovery knowledge throughout the legal community.”

2017 Reality: While there is a bigger niche in the legal community that knows more about e-discovery, in reality legal professionals as a whole are still pretty oblivious. For example, at one of the biggest in-house legal conferences in the US, 2017 ACC Annual Meeting, only one session even referenced the word e-discovery. Albeit, the number of e-discovery educational resources continues to grow, which includes more conferences, more blogs and a bigger focal point on e-discovery related news events in the media.

Trend #2: Expanded Adoption of E-Discovery Rules

2012 Look Back: “To the frustration of lawyers throughout the country, many state and district courts have yet to account for modern e-discovery challenges in their official rules and guidelines. However, 2012 saw both the Florida state courts and the U.S. District Court for the Northern District of California adopt new guidelines for e-discovery. The guidelines are designed to ensure that e-discovery practices are keeping pace with the rapidly evolving nature of ESI and technology and that the legal framework surrounding e-discovery strikes the appropriate balance between being prescriptive, yet reasonably flexible. Here's hoping more courts see the value of specific e-discovery guidelines in 2013.”

2017 Reality: According to e-discoverylaw.com, all 50 states have adopted some rules that address e-discovery issues specifically. Even with this adoption of e-discovery centric rules we are still waiting to see if judges across the country who constricted by heavy dockets and a limited amount of resources will learn and enforce these new e-discovery rules appropriately.

Trend #3: Judicial Endorsement of Predictive Technologies

2012 Look Back: “While many e-discovery experts have been beating the “predictive" drum for some time, there was much apprehension going into 2012 surrounding how the courts might respond to this emerging technology. Fortunately, several rulings emerged - including Da Silva MooreIn Re: Actos and Global Aerospace Inc.- that confirmed that judges are largely on board with the move towards computer-assisted methods to help reduce e-discovery costs. With the courts now endorsing predictive, expect 2013 to see a growing number of organizations look to invest in these promising new technologies.”

2017 Reality: Judges are still beating that “predictive” drum and it seems like they will need to keep on playing those bongos for a while. While there have been new decisions like Rio Tinto PLC v. Vale S.A. (S.D.N.Y. 2015) and In Re Biomet M2a Magnum Hip Implant Products Liability Litigation (N.D. Ind. 2013), which have helped clarified the use of predictive coding technologies, as whole the legal community isn’t universally using predictive coding for review.

Trend #4: Convergence of Information Governance and E-Discovery

2012 Look Back: “Though e-discovery is usually discussed in the context of litigation, its impacts can be felt in many areas throughout an organization. One of the positive trends of 2012 was an increased acceptance that e-discovery requirements must be carefully coordinated with larger information governance initiatives. By taking a proactive, comprehensive approach to how ESI is managed throughout the enterprise, organizations are beginning to reap the benefits of being able to respond to document production requests much more quickly and efficiently, while also reducing legal risks and costs.”

2017 Reality: We are still converging. Information governance has received much more attention over the past year or two with the numerous high-profile data breaches which have plagued major businesses like Equifax, Target, etc. The problem is, information governance as it applies to e-discovery is continuing to make progress. With the new FRCP rules emphasis on proportionality, legal departments are making a concerted effort to move away from the “preserve/collect everything” strategy and employ techniques like tiering e-discovery activities to reduce legal spend.

Trend #5: Emergence of E-Discovery Project Management

2012 Look Back: “Though many lawyers have resisted the notion, e-discovery is best supported by basic project management principles. As we've reported previously on the blog, failing to implement a consistent process around e-discovery is a common cause for mistakes – and sanctions. It would seem that the past year saw more legal teams accept this reality and begin looking at e-discovery as a repeatable business process. By shedding the reactive, “fire drill" e-discovery approach, organizations can develop repeatable processes and workflows and greatly improve efficiency.”

2017 Reality: Project management for the e-discovery is continuing to catch steam but for the legal community as a whole, there is still work to be done. Mature legal departments have started leveraging legal project management software to help organize and coordinate activities. According to the EDRM Duke Law, BDO and Exterro 2017 In-House Benchmarking report, in the next two years there is expected to be a 13% increase in the use of legal project management technology, while an 8% drop in use of spreadsheets and email. By incorporating legal project management technology, legal departments will be empowered to easily track important metrics like total matter cost for accurate budgeting and cost containment.

If you’re interested in seeing the complete results to 2017 In-House Benchmarking report, sign up and we will send you a copy of the report when it’s released on November 3.

Written by:

Exterro, Inc.

Exterro, Inc. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.