eDiscovery Daily Blog

Looking Back at Predictions That I Made Three Years Ago, Part 2: eDiscovery Predictions Revisited

Yesterday, I took a look back at two posts that comprised six eDiscovery predictions for 2014 that I wrote three years ago.  I thought it might be fun to look back at those posts to see how those predictions fared.  I covered the first three predictions yesterday, so today I’ll cover the last three.

Prediction 4: Data security will be more of an emphasis than ever, yet we will continue to see more data breach stories than ever.

If you follow our blog regularly, you know that we assign categories to each blog post to make it easier to find posts related to specific topics (that’s how you can quickly find all 500+ case law posts we have published since the inception of the blog back in September 2010).  In January of 2014, we hadn’t yet even created a “Security” category – that’s how little the topic was being discussed.  Now, we not only have a category, we currently have over 40 posts that have discussed data security and cybersecurity.  In addition to increased coverage on our blog, there are several other blogs and resources either dedicated to cybersecurity issues in the legal arena or at least covering them extensively.  So, there is plenty of discussion to go around.

Are we seeing more data breach stories than ever?  We’ve covered several breach stories on our blog, including this one about my hometown baseball team, this one about a website dedicated to cheating spouses (ok, maybe they had it coming) and this one about a Panamanian law firm that exposed (alleged) illicit offshore holdings of global political leaders and celebrities.  Not to mention the data breach associated with our recent presidential election.  Clearly, despite increased focus on protection from cybersecurity breaches, they still happen and happen frequently.

Prediction 5: Small to medium sized law firms will need to leverage virtual resources more than ever to compete.

Three years ago, it seemed clear to me that small to medium sized law firms would need to outsource more to compete with the big firms that could afford to insource eDiscovery services.  And, I wasn’t the only one advocating the benefits of outsourcing as people like eDiscovery thought leader Ralph Losey (author of the excellent e-Discovery Team® blog and member of big firm Jackson Lewis) were asking questions like “Why should you own and operate a nonlegal e-discovery business within your walls under the guise of a litigation support department?”

I’m not sure that I’ve seen much change in this area, with one exception.  More firms – small, medium and large – have embraced self-service SaaS automation eDiscovery platforms than ever before (and providers are taking note as many of the “big boy” providers are changing their business models to offer that option).  In my opinion, SaaS automation has definitely revolutionized eDiscovery for solo and small firms, giving them access (for the first time) to full-featured eDiscovery solutions that fit within their budget.  So, in that regard, they are able to compete with the big firms.

Prediction 6: Educating attorneys on eDiscovery best practices will continue to be a slow, painful process.

Year after year, I’ve asked various eDiscovery thought leaders at LegalTech New York (our seventh annual interview series is coming up next month!) if attorneys are beginning to “get” eDiscovery.  And, year after year, most of them say that we have a long way to go in that area.  Up to now, I agree.

But, things may finally be changing.  In 2015, California adopted Formal Opinion No. 2015-193, which discussed an attorney’s ethical duties in the handling of discovery of electronically stored information.  As of the beginning of 2017, more than half of all states – 26 in all – have some sort of ethical guidance with regard to understanding technology.  And, late last year, Florida mandated three hours of technology CLE for attorneys over a three year period, starting January 1 of this year (which is one reason why Florida is one of the states where we have approved CLE for our webcast next week).

It appears that more state bars are beginning to understand the importance for attorneys to understand the technology.  And, that technology is continuing to become easier to use.  That’s why we may finally be entering an age of technical competence for attorneys.  The prediction (that educating attorneys will continue to be slow and painful) is one prediction that I would be happy to be wrong about.

So, what do you think?  Has eDiscovery evolved like you thought it would?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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