Recently Fulbright & Jaworski published their Fifth Annual Litigation Trends Survey. This poll uncovered a few interesting eDsicovery trends:
– Over the past three years, eDiscovery disputes have reduced significantly
* We think this is due to the acceptance of producing the data, no matter how “burdensome”
– Respondents feel that full pre-trial disclosure should be reconsidered
* We often hear how difficult and expensive it is to find data that may end up being irrelevant
– Reliance on, and confidence in, Records Management for eDiscovery has greatly increased
* We think that ARMA will become the next Litigation Support resource.
Law.com’s article commenting on Deloitte Financial Advisory Services poll of in-house lawyers and executives finds that 30% of companies have no policy around electronic evidence preservation.
If the findings of the Deloitte poll are analyzed alongside those of the Fulbright & Jaworski survey, it becomes clear that the Legal Technology industry is in somewhat of a holding pattern. Litigators know that the courts will require them to produce the digital evidence. They hope that this requirement comes under review because it is time consuming and expensive. If retention policies do exist, the ownership is being passed from Legal to Records Management. And for the large percentage of companies who still have not developed or implemented information management procedures, they are most likely waiting for a better solution.
Right now corporations are saving everything and then having to discover it later. They are digging through vast amounts of duplicate files, system files, and spam email to find the small percent of useful information that actually supports impending litigation. Index Engines eDiscovery experience tells us this percent of relevant data is less than 5% of all stored information. There are a few approaches that can streamline both retention of information and the discovery of it afterwards.
Ideally, electronic information should be culled and deduped prior to saving it. With the right technology this can be done during the backup process. Once the subset of useful information is backed up, indexing and searching it using automated, tape indexing or high speed, network indexing technology makes this process fast, accurate and affordable.
Going forward, records management will discover the right way to retain data. Policies will be implemented and technology employed. The eDiscovery requirements will not be overturned, but the process to comply with the disclosure will become less painful.