As we start a fresh new year, here at QDiscovery, we’re having visions. No, not lingering visions of sugar plums dancing in our heads, but rather visions of the very near future. We decided to wrap up these visions as one last holiday gift – here are a dozen 2019 eDiscovery predictions from our own QDiscovery experts, as well as clients, partners and friends.
Enjoy your glimpse of eDiscovery in 2019.
Expanding Data Sources
Volume and sources of data both continue to expand exponentially. What’s in store for how this data is handled in litigation and investigations in 2019?
Director of Digital Forensics, QDiscovery
As their use in business communications grows, cloud based collaboration and communication tools such as Slack, Hipchat, Confluence, Salesforce and others will become more prevalent in litigation as a discoverable source of information. We will see more innovation around collection and review of these data sources, as eDiscovery teams adapt to include them within their existing workflows.
Discovery Counsel and Legal Education Director, Relativity
In a 2018 Relativity-law.com webinar survey, 73 percent of respondents said texts messages or other forms of mobile data were an issue in less than half their eDiscovery matters. I predicted we’d see a lot more mobile eDiscovery in the results, but email still reigns supreme. I’ll try to improve my performance for 2019: We’ll see more than half of eDiscovery matters involving at least some mobile data – but email will still be the biggest data medium for eDiscovery.
Senior Forensic Examiner, QDiscovery
We’re already seeing a surge in specialized in-house utilities and workflows for cell phone data (including our QMobile solution). The need for these utilities is clear – even though data comes to us from a seemingly unlimited variety of sources, to conduct effective investigations and prepare for litigation, we need to incorporate all disparate types of data into one cohesive workflow. This trend continues to gain momentum and will branch out into unique solutions for other non-traditional data types.
Executive Director, ACEDS
Fake news will morph into fake evidence. We’ll see our first cases parsing out what happens when authenticity of images and sound are challenged in court.
CEO, eDiscovery Assistant
Principal, ESI Attorneys
2019 will bring better and less expensive technology for lawyers to get to ESI quickly whether for text messages, voice recordings, social media or IM. Data hosting and processing costs will continue to fall and the features offered in software will become more abundant. eDiscovery case law will continue to pile up after over 1100 decisions in 2018. And lawyers will gain a better understanding of the complexity of ESI and its effect on each and every case.
Their value is widely recognized across the industry. Here are some predictions on how Active Learning and TAR will impact eDiscovery in the upcoming year.
Senior Project Manager, QDiscovery
“Active Learning” will be used as a supplemental tool to support traditional linear reviews. Case managers will run it in the background and use it to prioritize documents for batching or to QC the results of a linear review. This will be the first step in the adoption of Active Learning. As people become more familiar with it and its value is proven, it will eventually become the default.
This prediction from Kirk was also featured in LegalTech News back in December, read that article here.
Attorney, Bernstein Shur
Counsel will use, and courts will accept, Technology-Assisted Review (TAR) in an increasing number of smaller disputes. Advances in TAR have reduced the number of documents that require manual review to achieve statistically defensible results. Even reviewing 5,000 or 10,000 documents can be a tall (and expensive) task, but using TAR will allow counsel to improve the quality of their ESI review, maximize their resources, reduce costs and avoid the problems of using search terms alone. And with TAR’s increased use will come increased acceptance. More litigants will agree to use TAR and courts will increasingly approve the use of TAR and resolve TAR issues if a dispute arises. As a result, 2019 may be the year when the benefits of TAR are enjoyed beyond the biggest cases and biggest law firms.
The eDiscovery Industry
Several of our predictors took a broad view of the eDiscovery industry in 2019. Read on to hear their thoughts on growth, the value of eDiscovery leaders and the impact of 2018 privacy laws.
Chief Strategy Officer, Evidox, a QDiscovery company
2019 is poised to be a year of explosive growth for small and medium sized law firms, as corporations look outside the AMLAW 100 for better value. As a result, the types of matters serviced by small and medium size law firms will continue to broaden in complexity. The firms who will most benefit from this shift are the ones that partner with eDiscovery service providers, and utilize both technology and expertise to control costs.
Principal, Ari Kaplan Advisors
eDiscovery leaders will become increasingly sought after for their understanding of data management, protection and analysis. As the information landscape becomes more complex and regulatory changes produce urgent deadlines, the adaptability of these individuals and the technology they apply will continue to transform the field into a holistic enterprise-level discipline.
General Counsel, QDiscovery
Thirty-three states and counting have adopted technology competence as a fundamental ethical responsibility. Meanwhile judges have lost patience with lawyers practicing like it’s 2005. This adds up to a forecast for more and stronger sanctions in 2019. Litigators who continue to ignore new data sources and familiar eDiscovery rules do so at their own peril.
Clifford E. Nichols III
Chair, Discovery Practice Group, Day Pitney LLP
At some point in 2019, the tension between the GDPR right to be forgotten and the obligation to preserve data pursuant to a litigation hold in the U.S. will reach a point where litigants have to determine which trumps the other. U.S. litigants seeking to preserve this information will begin to include instructions in document requests and subpoenas – as well as draft discovery protocol orders – stating that documents are to be preserved despite the GDPR. Courts will then have to resolve these issues.
CEO, Proteus Discovery Group, LLC
2019 will be a big year for eDiscovery’s impact on creditor’s rights and M&A practices. There are several economic factors at play that may push companies into some form of restructuring or consolidation. Practitioners will follow the course of many litigators and look to eDiscovery vendors and document review companies to cull large amounts of data through both analytics and review.
After reading these predictions, we’re excited to kick-off our 2019. How about you?
As Director of Marketing, Tricia Johnson leads marketing strategy and execution for QDiscovery. Throughout her 20-year career, she has successfully managed marketing for growing companies, including marketing strategy, branding and development of integrated marketing programs to support sales growth. Tricia brings a deep understanding of marketing derived from her experience both in corporate marketing and in advertising agency environments working with a wide range of industries and distribution channels. Tricia holds a Bachelor of Science in Commerce degree in Marketing from DePaul University.