2. The Big Data/information governance debate over classify versus search will continue. Should organizations classify information for retention and destruction purposes under the umbrella of an information governance strategy? Or should they keep Big Data and comb through it with advanced search technologies? Don’t expect these questions to be resolved in 2015. There is merit to the opposing positions with strong advocates in each camp supporting their respective arguments.
3. The Internet of Things won’t become the next big thing in EDD. The IoT is a particularly hot topic right now and is being posted by some commentators as the “next big thing” in e-discovery. While the IoT has the potential to generate exceptionally large amounts of data, that data may be relevant to only a few matters. The prophesied nightmares of overwhelming amounts of data from the IoT may eventually become a reality, but probably not in 2015. That, however, does not lessen the need for counsel and clients to assess the issues and develop a plan for preserving and producing relevant IoT data. Nor should it be cause for organizations to ignore the potential that the IoT may inadvertently or intentionally sweep up personally identifiable information in violation of domestic and cross-border data protection laws. Having an actionable strategy to address the inevitable EDD and data protection issues will help organizations be prepared when the IoT onslaught actually materializes.
4. Anonymous social media apps will complicate EDD. While social networks have leaped to prominence in EDD over the past few years, newer social media apps will figure into the EDD equation. At the forefront of this confluence of social media, litigation and discovery are anonymous apps. Spotlighted last month by The Wall Street Journal, these messaging apps allow participants to anonymously share views with others in the same general geographic area. Popular on college campuses, they are posited as leveling the nature of communications through “the liberating nature of anonymity.” However, they are already a burgeoning source of intimidation and threats of violence. Expect that trend to increase, along with related litigation and discovery to determine the identities of those perpetrating crimes and torts.
5. FRCP amendments will have little (if any) impact on EDD. While amendments to the Federal Rules of Civil Procedure will be enacted with great fanfare next year, don’t expect the rule changes to affect the discovery process. Indeed, as attorney Craig Ball observed, “I’m still waiting for the 2006 amendments to effect a sea change!” The amendments won’t have a noticeable impact because the challenges associated with e-discovery go far beyond the shortcomings with the current rules regime. Without a corresponding change in discovery culture by courts (See Changing Discovery Culture One Step at a Time), counsel and clients alike, the proposed modifications will likely have little to no effect on the manner in which discovery is conducted today.
6. Courts will Increasingly employ cost shifting. Expect the cost-shifting amendment to FRCP 26(c) to affect a significant change in discovery practice. Courts increasingly rely on the implicit wording of rule 26(c) to shift the often astronomical costs associated with EDD and to temper lawyers’ “leave no stone unturned” mentality. With that authority now becoming an express power, more courts will shift costs—or at least threaten to do so—to ensure discovery is reasonable and proportional.
7. Companies will continue struggling with preservation and production from clouds and mobile devices. It should not come as a surprise that litigants and lawyers will struggle with cloud and mobile device-related EDD next year. Failures to properly address data stored in clouds and on mobile devices headlined some of the top cases from 2014. Nevertheless, this trend could weaken or even be reversed if parties revamp their legal hold processes and if lawyers become more well versed in technological issues relating to the preservation of electronically stored information in the cloud and on mobile devices.
8. The judiciary—not Congress—will increasingly protect privacy rights in the U.S. Expect a wave of courts to follow the lead of Bakhit v. Safety Marking, Inc., and invoke privacy rights to safeguard mobile device data from overly-broad civil discovery requests based on the U.S. Supreme Court’s Riley v. California decision. Riley signaled a sea change in the judiciary’s treatment of information stored on mobile devices in the criminal context. The Bakhit court picked up on this verbiage and applied it in the civil context, protecting text messages, social media content, and other mobile device data from expansive requests. While the judiciary leads the charge on data privacy, don’t expect Congress to follow any time soon. The extant legislative dysfunction that prevents passage of basic appropriations bills has blocked important privacy legislation such as the much needed updates to the Electronic Communications Privacy Act. Despite widespread and bipartisan support for the ECPA amendments, don’t count on them passing through the current Congressional stasis.
9. Acquisitions and divestments will rock EDD. Beyond the normal consolidation within the EDD industry, expect acquisitions and divestments to make 2015 anything but business as usual. Just as 2014 saw Microsoft Corp. sign a letter of intent to acquire Equivio, we could see a major industry player be snapped up in 2015 by a larger company from outside of the industry. We can also expect divestments from within the industry, with some large companies perhaps deciding to part ways with their respective e-discovery business lines. With so much upheaval rocking the business world, the EDD industry can hardly expect to remain immune from this trend.
10. Organizations will Increasingly engage legal process outsoucing of e-discovery. The perceived value that LPOs have provided to clients—with reduced rates over what law firms would generally charge for the same services—have led to increased revenues and greater market share for LPOs. With additional law firm collapses and consolidations likely in the works for 2015, together with clients demanding cheaper yet more effective legal services, expect clients to continue turning to LPOs for EDD and other commoditized legal services.
10 Predictions for 2015 E-Discovery
