eDiscovery Trends: New Technology, Employment Affects & Native File Productions

eDiscovery continues rapid technological evolution and significant adoption across law firms.  At this ILTA session David Cowen of The Cowen Group and Steven Clark of Lathrop & Gage facilitated an open discussion, with standing room only, on the hottest topics in e-Discovery.  The subjects covered in this forum were “New Technology Trends and Tools,” “Employment Trends,” and “Native File Productions.”

New Technology Trends and Tools

TAR (Technology Assisted Review) was discussed at length.  Everyone in the room understood the importance of these types of tools in discovery which create efficiency and better results.  Multiple firms had utilized TAR to prioritize linear review.  The goal is to help establish focus for later human review.  However the inescapable theme was fear of TAR.  The trepidation surrounded the importance of proper identification of documents and review.  Firms lack in-depth experience with these tools.  Ultimately it was discussed that education should assuage these fears while people continue to test TAR.

Some other trends with technology and e-Discovery included:

• Predictive Coding: the biggest challenge is defensibility of using it and how much it can be trusted.
• Firms are relying on partners/vendors to help train and make sure the e-Discovery tools work
• e-Discovery consultants are being hired more
• In the future the use of tools will target specific datasets rather than hitting all of the information as most do currently

Employment Trends

With all of the adoption of new technologies there are many impacts on employment. There was a flurry of important points discussed.

• 50,000 law students graduated in 2012 and there were 15,000 law jobs available
• Many new positions are being crated as they relate to the new technology tools
• Salaries are falling. There is a glut of people in the business, many of whom may not have the newer skills
• A talent flow issue has popped up. Many attorneys are coming into law firms from outside the law firm world. Some are coming from the consultancy world of PWC and Kroll while others are previously vendors dealing with the technical piece.
• In 2009 one law firm processed 45 TB of information using 165 people. Today the firm would need 30-35 people to handle the same amount of data.
• Certifications are fine, but most of the firms that spoke would prefer real experience in e-Discovery.
• The MVP in a law firm now is the triumvirate; a legalist, technologist and project manager

Native File Productions

Another hot topic discussed pertained to the use of native files in production of e-Discovery.  One individual mentioned that native files make little sense to use.  He noted that they are expensive and unnecessary except for Excel or a few others formats.  The best solution is to use quasi native production as a viewer.  Since native is so expensive to produce, the best example illustrated was describing the difference between a picture in color verses black and white.  It might be nice to have color, but do you really need that for document review?  The economic aspect makes it cost prohibitive currently.

The overall sense from the discussion was that we are in a new age of discovery.  The effects of these technologies are far reaching.  It is altering the business of law at firms impacting employment, resources, education, and efficiency.  As with any transformative technology there will be some discomfort but ultimately firms will be stronger and clients better served with e-Discovery tools.