Mayer Brown’s Electronic Discovery & Information Governance Practice hopes you found our Tips of the Month series valuable in 2014. We wanted to take an opportunity to recap the major E-Discovery trends of 2014 and to provide last year’s tips in a single document for easy reference. We hope that our monthly updates continue to bring you value and, as always, welcome your comments and suggestions for future Tips of the Month in 2015. We’re here to serve your interests and we sincerely thank you for your continued comments.
2014: The EDIG Year in Review
The trend in EDIG this year was convergence: convergence of electronic discovery with information governance; convergence of technology-assisted review and settled workflows; and convergence of cloud data into the electronic discovery workflow.
- Electronic discovery converges with information governance. Businesses are coming to recognize that the best way to manage electronic discovery issues is to take control of the information that they create. Much of the routinely created information generated in the course of a business day isn’t of any particular business use to anyone—it’s just “stuff.” And retaining it forever costs money, without delivering any identifiable business benefit. Further, once litigation is filed, having large quantities of this material can bog down your processes and increase the difficulty and cost of managing the litigation.
- TAR converges with settled workflows. In 2014, we saw growing consensus among judges that technology-assisted review is a viable component of an ediscovery strategy, in combination with human review and search-term based techniques. See generally Bridgestone Americas, Inc. v. Int. Bus. Machs. Corp., 2014 WL 4923014 (M.D. Tenn. July 22, 2014 (“In the final analysis, the use of predictive coding is a judgment call, hopefully keeping in mind the exhortation of Rule 26 that discovery be tailored by the court to be as efficient and cost-effective as possible.”); FDIC v. Bowden, 2014 WL 2548137 (S.D. Ga. June 6, 2014) (“Predictive coding has emerged as a far more accurate means of producing responsive ESI in discovery. Studies show it is far more accurate than human review or keyword searches which have their own limitations”) (quotation omitted); Progressive Cas. Ins. Co. v. Delaney, 2014 WL 2112927 (D. Nev. May 20, 2014) (noting the empirical accuracy of TAR but requiring transparency regarding TAR workflow); Federal Housing Finance Agency v. HSBC North America Holdings, 2014 WL 584300 (S.D.N.Y. Feb. 14, 2014) (endorsing use of TAR for responsiveness review).
- Cloud data converges with ediscovery. We also saw data at cloud providers move to front and center of the EDIG conversation. Large-scale commercial storage-as-a-service and email-as-a-service providers are getting enough traction with businesses that there is a good chance that any given business will store at least some information responsive to a litigation requirement with a service provider as opposed to on servers that it owns. Finding elegant solutions to the problem of preserving and collecting information from a heterogeneous environment including resources outside the client’s physical control will take a couple more years—but the problem is squarely presented now.
The big, long-term story for 2015 is how the amendments to the Federal Rules that are due in December will play out. We will be tracking that story, the trends above, and other surprises and developments in the EDIG world in our Tips of the Month.