eDiscovery is a 21st Century legal “big bang.” Ushered along by (and in response to) the development of technology, eDiscovery exploded into practice as data overwhelmed clients, business interests flocked to meet emerging needs and the Federal Rules updated lawyers’ responsibilities. As quickly as we embraced dedicated eDiscovery professionals, products, process and punditry, observers and practitioners began to predict its “death.” However, rather than reflecting its decline, I would argue that “automated” technologies, data mining, information governance and an emerging big data philosophy are actually the results of a maturing eDiscovery market and practice. So, in honor of spring, what are the symptoms of eDiscovery’s descent and conversely, is eDiscovery actually flowering?
Vendor Attrition: Rather than a sign of the apocalypse, attrition in the legal services market is an effect of its dynamic character. Because eDiscovery was created and is powered by technology, its development has been fast-paced and exponential. Rapid evolution puts immense pressure on lawyers and providers to meet market needs and to remain competitive. This constant churn and change dramatically impacts traditional capital outlays, the pace and expectation of development and the need for human resources. For this reason, we have all seen major players struggle to meet the pace and demands of the market. We have also seen business interests chase the dollar and herd toward “the latest” standard such as (from earliest to latest); processing, platforms, staffing, managed review, analytics, cloud, etc. seemingly without regard to strategic, long-term planning. Finally, from a large firm perspective, as eDiscovery has become increasingly more complicated (global clients, types of media, volume), one-stop shopping is important and niche players are harder to justify (cost and security) and manage.
Efficient Technology and Scope: One of the ironies of successful development within a discipline is that it eliminates less efficient aspects and cuts its ranks. In early years, eDiscovery was one-dimensional in its approach and focused on gathering data, staffing and linear review. The development of more sophisticated technology through analytics has not only improved quality and speed but has widened the scope of institutional data management to include emerging holistic approaches like information governance. In short, a steamlined process is a downsized industry.
eDiscovery as an Integrated Practice: We will see greater integration of eDiscovery into the individual substantive practice of lawyers with diminishing need for dedicated eDiscovery personnel. The FRCP and Model Rules for Professional Conduct have been strong catalysts for consolidating eDiscovery into modern practice as technology pervades. Also, a new generation of attorney is rising into leadership. These tech-savvy lawyers matured into practice with eDiscovery and better understand its requirements, strategy and process and are often able to manage the EDRM themselves with less guidance and support. (This integration does not preclude the development of substantive eDiscovery practices).
So, as some have described it, why is eDiscovery a “contracting market” and what does that really mean? To butcher a quote from the inimitable Mark Twain, “the reports of [eDiscovery’s] death have been greatly exaggerated” and I feel that the hand-wringing is largely a vendor perspective/concern as the market evolves. Advancement in the eDiscovery space will continue and it will become further entrenched in jurisprudence and procedure. The effects of “growing pains” reflect a maturing market that is flowering as it more fully integrates into practice and as legal services are measured for sustainable value and flexible technology solutions.