Law firms engaged in eDiscovery activities face a daunting task: dealing with the sheer volume of data, the endless emails, word-processing documents, spreadsheets, CAD drawings, and databases that must be examined to unearth those few crucial nuggets of information that can make (or break) a case.
Technology can help, but only to a certain degree. Technology-assisted review (TAR) tools can use advanced text mining algorithms to filter out irrelevant items, but that can still leave an overwhelming number of files that must be examined by a human (or, more likely, a team of humans). And TAR has its limits—can a TAR tool look at a CAD drawing file and decide whether a certain hardware feature relates to a patent claim? Probably not. Simply defining the criteria for what is and is not relevant can be a major challenge.
So even with TAR, the costs of eDiscovery have been on the rise, with law firms adding staff just to deal with the load.
Here’s the bad news: It’s about to get worse.
Monumental Increases in eDiscovery Complexity
Three areas are expected to dramatically complicate gathering and processing eDiscovery data for a case: social media, cloud storage, and mobile devices.
- Social media: As companies increasingly turn to social media to stay in touch with their customers, eDiscovery will involve more Twitter tweets, Facebook posts, and other data on social media servers. Some of this data is by nature ephemeral; Snapchat, for instance, provides shared items for only a few seconds, after which they are automatically deleted. There are open legal questions regarding ownership of social media data and to what extent social media services can be forced to provide non-public user information. And then the sheer volume of additional data must be reviewed, much of it photos or videos that are difficult to evaluate with TAR tools.
- Cloud storage: For many reasons involving cost, reliability, and disaster recovery, businesses are taking advantage of cloud storage services to store and process electronic data. Here, the data ownership question is more clear-cut, but there will be exceptions. If a party to a suit doesn’t pay its cloud storage bill, and the cloud service provider deletes their documents, then what? Can the cloud service provide be compelled to provide the documents from backups (if any exist)?
- Mobile Devices: As phones and tablets become more sophisticated and powerful, more of them are being used for business. Some may be the only place that some relevant documents are stored. Further complicating matters is that companies are increasingly embracing “bring your own device” (BYOD), where employees use their own devices for company business. Some companies have a policy that such devices be wiped of their company data when an employee leaves the firm, and when that data is gone, it’s gone. Even for companies without such a policy, tracking down current and former employees who might have data on their personal devices adds a new and daunting level of complexity to eDiscovery.
We are entering a new era in eDiscovery, where there are few legal precedents and the ability of technology to cope will be severely taxed. The process probably will get harder before it gets easier. So strap in—we’re in for a bumpy ride.
Written by Desh Urs
As a Vice President of Global Sales, Services, and Marketing at Silicon Graphics, Inc., Urs managed engineering and non-engineering functions, developing solutions in sciences, telecommunications, manufacturing, media, business, and defense intelligence, for companies with revenues of several billion dollars. During his tenure as Vice President at Think Tools AG and Brio Technology, Inc., he ran business development and alliances providing solutions in Business Intelligence and Decision Cycle Management to Global 100 corporations worldwide. In the late 1980s, Urs founded Indus Systems, Inc., which he profitably sold to a systems integration company.
Urs serves on several Advisory Boards, as well as many company Boards, in the United States and India.