The Shifting Role of eDiscovery in the Legal Space

27Sep2016

Jack Berlin & Jason Silva

In the course of only a decade, e-discovery has moved from a costly experiment pursued by only the largest law firms to a near necessity for organizations of all sizes. Today, even small and medium firms are adopting the technology, spurred on by the availability of third-party resources, lower implementation costs, the challenge of preserving digital information, and encouragement from judges. Over the last few years, the scope of e-discovery has spread to criminal proceedings, breaking free of its historical confinement to the civil realm. As e-discovery continues to mature, its capabilities and applications will only continue to expand.

In an era when virtually all information is created digitally or passes through a digitized system, manual discovery efforts fall short. Not only is today’s information created digitally by default, the volume of data generated dwarfs the footprint of the equivalent physical records; a file’s metadata can often tell as much of a story as the document itself. With the volume of relevant, digital case information growing exponentially, legal discovery and analysis must also relinquish manual processes to keep pace.

Why firms are making the switch to e-discovery

The rise of e-discovery is intimately linked with the transition to digital systems, not just at law firms, but in the business and consumer space as well. Especially today, when virtually all information is created within computers, mobile devices and other internet-enabled hardware, manually sorting and categorizing mountains of data simply isn’t feasible.

In criminal proceedings, where unexpected revelations might spur a new line of questioning, the real-time nature of e-discovery can play a vital role in a successful defense or prosecution. Forced to choose between forgoing a potentially pivotal fact during court proceedings or investing in e-discovery tools, firms can’t afford to lose their competitive edge.

The challenge of preserving data has also encouraged firms to migrate to e-discovery. While it’s commonly understood that shredding documents during the discovery process is unethical and illegal, deleting an email or document carries the same implication – but can easily occur accidentally. Given that the scope of legal discovery now includes key performance indicators (KPIs), chat logs, social media activity, email, documents, spreadsheets, slideshows, SMS, MMS and more, it’s essential that the full breadth of data is preserved.

In the past, a waterlogged crate of documents might have represented the loss of several hundred files; today, a damaged hard drive could represent the loss of millions or even billions of pieces of important data. Such a loss might be interpreted as malice, rather than negligence, especially when e-discovery tools capable of identifying and preserving documents are readily available. Some firms might even face spoliation charges if they choose to put off e-discovery adoption.

Transforming the legal industry

E-discovery is revolutionizing litigation with tools that exceed human capabilities and elevate attorney efficiency. For instance, e-discovery platforms can use predictive coding to search for words and phrases based on similarity, or analyze metadata to find when documents were created and modified. Not only does this reduce the number of resources required throughout the discovery process, but it can even help deter frivolous lawsuits.

Beyond powerful search capabilities, e-discovery brings firms far more flexibility with managing their legal matters. For small organizations that don’t have a dedicated legal department, third-party vendors can offer e-discovery support, allowing firms of any size to make use of technology previously only available to the Fortune 500. At the same time, e-discovery solutions can be integrated with cloud-based, centralized document management systems, helping unlock more productivity from legal teams. Even if co-counsel are separated by hundreds of miles, online collaboration capabilities ensure teams can serve their clients in any situation.

Abandoning manual discovery offers firms a faster, more accurate and more affordable process, able to serve any organization's needs. Facing mounting pressure from larger competitors, clients and judges, there has never been a better time for law firms to invest in an e-discovery platform.

Jack Berlin is the CEO and president of Accusoft, a provider of document and imaging tools for developers, which he founded in 1991.

Jason Silva is the director of operations at Cornerstone Discovery, a single-source solution for Criminal and Civil Litigation support needs, which he joined in 2010. In addition to his role as the director of operations, Jason is also a certified digital forensic examiner.