This is the time of year for predictions about the next twelve months. I tend to make mine aspirational, that is, I hope to encourage movement in the general direction of my predictions without necessarily being optimistic that they will come true.
Dean Gonsowski is eDiscovery counsel at Clearwell. Clearwell is now owned by Symantec and, if some of Dean’s predictions relate to information governance rather than pure eDiscovery, that is not just for marketing reasons – the acquisition was itself a fulfilment of a generally-held view that eDiscovery would come to be seen as part of a continuum from document creation through archiving to the processes illustrated by the EDRM. One would have expected the subject to be on Dean’s predictions list even if he were not now part of Symantec.
As I have already recorded, Dean and I made a video together recently in Munich, and filled our time without getting onto questions about the future. We remedied that in a long phone call last week, and what follows includes my gloss on his predictions, not merely a bland recital of them.
Dean’s points came under ten headings which, he said, were given in no particular order.
1 Technology Assisted Review gains speed
Technology-Assisted Review, or TAR, has appeared from nowhere as the term de nos jours for the sophisticated technology which takes e.g. relevance input from senior lawyers or subject-matter experts to build a seed set and then applies the results across a bigger or the whole data set. Depending on who is talking, it may be called predictive coding, software-assisted review, predictive tagging or suggested coding, and both the underlying technology and the precise process varies from product to product. User acceptance has been slow, partly because of fears about defensibility, partly through misunderstandings of what it does or can be used for, partly because its validation depends on mathematical precision with which lawyers (being mostly arts graduates) do not understand, and partly because lawyers make a lot of money …oops, nearly said something tactless there (and this, I stress, is me talking, not Dean).
Dean Gonsowski believes that we are “on the cusp” of acceptance of this technology, and that we will see “an increased comfort level” from lawyers as we move into 2012. The fear, touted in a New York Times article of last March, that TAR will put lawyers out of work, will give way to an acceptance that manual review is simultaneously expensive and inaccurate, and lawyers will acquire new skills. They will “struggle with how to use it” to begin with, but will realise that there are several use cases, including many which do not involve judicial acceptance. US Magistrate Judge Andrew Peck’s recent article (free registration required) will be strongly influential in this regard.
2 Custodian-based collection model will decline
The custodian, the person having administrative control of a document or electronic file, is a convenient unit when defining the scope of an eDiscovery exercise. Like date ranges or keywords, custodians are easily identified – you can interview them, see their e-mail folders, file shares and laptops, and understand their roles and how they used their data. You can send them legal hold warnings and, in extremis, put them in the witness box. They make a convenient unit for negotiation as one party demands 100 custodians, the other offers five and you end up with 120 as some new sanctions opinion keeps you awake at night.
Dean Gonsowski suggests that this model is becoming less useful as more and more data is collaborative in nature and becomes distributed – who “owns” a chunk of SharePoint data which everyone has contributed to? To what extent can any individual be said to have “administrative control” of documents in the cloud?
Dean was not, I think, suggesting that 2012 would see the end of custodian-based collection – it remains too useful a unit for preservation, collection and review – but we are already having to look much more widely than the aggregate of individuals’ data. US Magistrate Judge David Waxse made a similar point at Georgetown.
3 Preservation debate will reach no conclusion
The long drawn-out debate in the US about preservation seems to be making little progress, with no body of opinion behind any one of the several suggestions under discussion and none of them really addressing the costs issue. The nearest we get to commonality is a majority in favour of reducing the amount preserved, without much clarity as to how to define the trigger, the scope and the duration of a hold. The interim answer, Dean Gonsowski says, is “better legal hold”, with information governance as the long-term solution – that is (and I paraphrase here) reduce the amount of crap you are keeping and your preservation problems diminish.
4 Data hoarding will be seen as the problem it is
Many companies have never disposed of any information, weighing the low cost of storage against the cost and effort of doing something about it and finding it easiest to make no decisions beyond buying more rack space.
The cost is now turning up in various forms – risk exposure, the costs of eDiscovery review, and ancillary management costs all prompting an association between good data hygiene and good results.
5 Information Governance on the rise
Information governance has been seen as an unattainable dream – “Pollyanna, pie in the sky, boil the ocean” as Dean called it in defining the common perception of implementing information governance. People are beginning to see, he said, the nexus between the proactive and the reactive side of owning data, with money being saved and risk reduced by good information governance.
Information governance does not necessarily imply facing the whole problem at once, Dean said – it can be modular. You can make a start with good records management, legal hold and the development of an eDiscovery workflow, and move on to access control and auto classification, focusing at each stage on risk reduction and return on investment.
6 Slow death of backup tapes
We still see many companies keeping backup tapes for reasons beyond their original disaster recovery purposes. They are coming to be seen as a liability as the cloud provides better backup facilities.
7 International eDiscovery will continue to mature
Dean’s observation on international eDiscovery was particularly interesting for an outsider who represents a different (that is, the non-US) viewpoint.
Dean sees a decline in the US view that everyone else is “light years behind” the US in eDiscovery, and he was kind enough to give me some credit for that shift in view (I am merely a scribe here, you understand). The idea that you can simply export US eDiscovery expectations into other jurisdictions is facing the reality that the rest of us just don’t like it, and not simply because of its extravagance and because data protection and privacy laws prevent it. Dean sees a growing self-awareness in the US which must make it easier to resolve cross-border difficulties.
8 E-mail becomes so 2009
No one is predicting the death of e-mail yet, but there is a danger that people will overlook social media, mobile devices, the cloud and all the other implications of non-traditional media forms and sources. A new wave of cases will come because people have not thought about this type of data.
9 More debate on costs-shifting
We are seeing more cases where the costs of eDiscovery are passed to the other party. At the moment, this largely depends on an analogy with copying charges and there has been little consistency. We will see that changing in 2012, Dean thinks.
10 Risk assessment becomes a critical component of eDiscovery
Dean observed that the subject of risk assessment ties in with the debates about TAR. It also crosses into preservation issues. Perfection is too expensive even if it is attainable at all, and the discussion is becoming more nuanced as we ask ourselves what level of precision is both safe and proportionate; how imperfect a process is acceptable?
There is obvious overlap between some of these points but they were ten wholly plausible predictions. It will be interesting to see if anyone else comes up with anything different.