eDiscovery in 2015: Predicting the Unpredictable

I’ve been mulling over my eDiscovery predictions for 2015 and I realized that they represent more of a “wish list” than anything. Suffice it to say, I feel like we have a lot of ground to cover with respect to innovation and evolution in eDiscovery-related products and services. Here’s my road map for the journey forward:

1) The contrast between document review and document investigation will become more stark, especially as we continue to confront the exponential growth of ESI. Finding text-based documentary evidence is more than creating different ways to categorize and read piles of electronica, simple information search and retrieval, and/or large scale data analytics. There are forensic linguistic investigative methodologies that can offer real solutions to finding out the ‘who, what, when, and why’ in a collection of ESI. And they don’t require huge platforms, armies of human power, or a lot of time and money, but rather the right expertise and expert tools. Why set up huge review efforts to find evidence when you can consult experts who just go in and find data-driven answers to your questions? There are significant areas of expertise that eDiscovery has yet to properly tap, but I expect this will change in the coming months and years.

2) Big, clunky, “everything but the kitchen sink” review platforms are going to go the way of the dinosaur. We’re becoming a more a la carte (a la app?) industry, and society in general, with respect to technology. We have a specific enterprise and we want a tool that accomplishes it. On the horizon I see lean, efficient, agnostic expert tools and solutions, and expert users manning the tools which provide these solutions.

3) eDiscovery tools and solutions are going to evolve beyond simply reacting to large quantities of data. And in the same vein, we will start to move past focusing primarily on eDiscovery processes for culling or reducing data. Rather than exclusion, I predict a move toward quite the opposite end of the spectrum: Inclusion. Let’s stop hand-wringing over reducing size and start concentrating on identifying and collecting the most qualitatively relevant, robust data set possible, using the most valid and reliable methods available. When your objective is to identify and produce the most qualitatively valuable data set, the idea of culling becomes a moot point. We simply have to stop letting the fact that we’re dealing with a lot of data be the driving force behind adopting eDiscovery tech solutions.

4) Much to my dismay, predictive coding is going to continue to make headway into relevancy identification. This should not imply that I am not a fan of predictive modeling, because in the right context, it is a hugely powerful and productive methodology. In fact, I love using predictive models in some  investigative contexts. However, I’m going on record to say that relevancy/responsiveness identification and collection is not the right context for this methodology. And when you use this methodology in an improper context, you will get unreliable and uninterpretable outcomes. It’s a risky venture.

5) Large corporations and businesses will move to handle more eDiscovery processes internally. There’s a pervasive conversation happening about information governance and management. eDiscovery is a natural extension of this conversation. If large companies advance toward principled, data-driven information governance, and truly get a handle on their ESI, then they are going to have to create teams representing the right combinations of technical experts and subject matter experts. When these expert teams settle into place and develop/implement smart information management processes, then wholesale out-sourcing of things like relevant/responsive document identification and collection will not be necessary. As a result, the data flowing outside of a company will be contained to the most relevant information to the task at hand, whether it is in the context of litigation, arbitration, or compliance, etc. In sum, good corporate information governance will have a have a huge impact on eDiscovery.

There you have it. My stab at prognosticating about the future of our field. And now instead of just writing about all this fun stuff, I’m off to practice what I preach.

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