Legal precedence is designed to keep practice within parameters, to create predictability and to develop standardized treatment of factual circumstances and subject matter. The practice of eDiscovery has developed differently because it is both created and affected by technology, and its growth has been dizzying. Inevitably, rapid technological evolution finds itself at odds with the conscious conservatism and methodology of law and that has produced “progress” at inconsistent and varying rates.
Because the landscape is ever-shifting, it has been difficult for professionals to gauge the responsibilities of practice. eDiscovery practice occurs in an environment where there is a huge divide between the opportunity that technology provides versus what our profession requires of us. In fact, you may be overwhelmed by a constant barrage of possibilities from the technology industry and from colleagues that routinely seem to raise the bar and question;
- Are you outsourcing?
- Are you fully exploiting analytics?
- Are you a forensics expert?
- Is your data dark?
- Are you optimizing the cloud?
- Is your data at risk of a cyber-security breach?
- Are you integrating big data and information governance principles?
The answers to these questions are relevant and powerful depending on the context, your client and your organizational structure. Despite the frenzy of the marketplace, we are fundamentally held to a standard of reasonableness, competence, fairness, and proportionality. As we wait for the courts to create definition around these vague standards, there is considerable flexibility in the practice of eDiscovery and to better understand how to navigate your way through the eDiscovery landscape, Part 2 will outline the relevant resources for practitioners. From caselaw to treatises, blogs and more, we will outline the nuance of practice intended to incorporate efficiency, superior technology, collaboration and defensibility.
As jurisprudence develops, the profession is largely motivated by comfort level, cost, client input and dipping our collective toes into emerging technology. The organic eDiscovery standards of practice, free-formed and tailored to specific need and context (the business of law), create a confusing array of priorities and an increase in ebb and flow as professionals are influenced by a market that emphasizes predictive coding, information governance, data mining, cyber-security, etc. It also encourages a tech-centric, competitive, one-dimensional world where an irrational fear of being perceived as outdated (though compliant) may be contrary to successful business models. Within the tension between practice and marketplace lies the line between real responsibility and competitive opportunity.
So, in a young and ever-evolving industry, we face a practice environment where jurisprudence is scant and we hang on every decision or rule change but, where technology constantly improves and provides the possibility of so much more. However, this framework provides considerable flexibility on individual matters. It is in the large spaces that exist between rulemaking where eDiscovery practitioners look to policy think tanks (Sedona, EDRM, etc.), conferences, colleagues, wonks and legal services vendors for support and guidance. It is in that space that standards of practice are created client by client, firm by firm and day by day and for the savvy practitioner, there is considerable strategic opportunity.