5 Daunting Problems Facing Ediscovery

Below you will find a sneak-peek into upcoming Kroll Ontrack research highlighting the most significant ediscovery challenges in the next three-to-five years. This research will be available in its entirety via download soon.

2012 was a year of monumental challenges. Now that we have survived the Election, the Mayan Apocalypse, and the Fiscal Cliff, it is high time for ediscovery professionals to refocus on the most prevalent problems our industry faces in the future.

Problem #5. Ediscovery rules and technology are constantly changing.

There is no rest for the ediscovery weary. Ediscovery variables are in a constant state of flux:

• Places where data can live are increasing in number and complexity.
• Rules and regulations governing litigation across the globe are constantly evolving.
• The line between personal and professional is blurring, as companies are increasingly enacting “bring your own device” (BYOD) policies and integrating social media platforms into business practices.

Problem #4. Ediscovery costs are unpredictable.

The ediscovery pricing landscape is defined by many variables:

• From per gigabyte or custodian pricing models to flat, alternative fee arrangements, pricing models have dramatically changed in the last two decades.
• Despite the best efforts of analysts to compare ediscovery providers in one way or another, true “apples to apples” comparisons of ediscovery providers can seldom be made by law firms or corporations faced with ediscovery obligations.
• Parties are continually at risk of volatile ediscovery project parameters, as scope creep is commonplace, resulting in ediscovery budget overruns.

Problem #3. Technology-Assisted Review (TAR) is underutilized.

The development of technology assisted review (TAR) was the single most momentous ediscovery story of 2012. In 2013 and beyond, courts will continue to push the TAR narrative as they fine-tune the most appropriate instances and best practices for its adoption. Despite this momentum, corporations and law firms remain reticent to leverage the power of this game-changing technology. The widespread, consistent use of TAR in litigation is a grand undertaking in the world of ediscovery, but 2013 will no doubt be a year of significant growth.

Problem #2. Case analytics are primitive.

Law firms and corporations are clamouring to understand their discovery data across multiple cases. To increase litigation management efficiency, discovery professionals need more useful metrics, including: volume analytics across cases; spending totals per matter, per file type, per location; production statistics that include the number of times a document has been produced; search metrics; and collection and preservation information to show past discovery activity.

Problem #1. Ediscovery is transactional.

Organizations are asking for repeatable and predictable – not ad hoc – ediscovery processes. Today, it is not uncommon for ediscovery practices to be invented and reinvented from matter to matter, and legal professionals seek to exchange this project-oriented approach for a more defensible process-oriented approach. The ediscovery solution of the future requires a business-focused strategic effort, tightly integrated with overall information management practices, powered by comprehensive technology solutions.

What do you think? What other ediscovery challenges are facing the industry? Comment below.