Time again to dust off our crystal ball and give you our guaranteed predictions of what you will see happening in e-discovery in 2017:
1. The Cloud
We have already started seeing a move away from on-premise e-discovery installations. With kCura’s recent move to hosting on Microsoft Azure, combined with Microsoft’s rollout of Canadian data centres earlier this year, we expect to see more law firms ditching their current in-house installations and moving to cloud based e-discovery software.
2. More Options for Canada
We predict a greater acceptance that cloud based software is just as secure, if not more secure, than in-house installations. We have been told by several south-of-the-border e-discovery software vendors that they have plans to launch Canadian data centre hosted installations in the coming year. We can’t divulge who they are (that would spoil the surprise), but look for more options next year.
3. More Discovery Plans
The OBA Civil Litigation group has prepared a paper questioning the value of the current rules relating to discovery plans. We see an increasing need for effective discovery planning. E-discovery is not going away as data volumes increase. Different forms of communication are developed all the time. As awareness of discovery plans and their usefulness for even small cases increases, more and more lawyers will start to use them, and start discussing scope and exchange of documents sooner, exactly the purpose of the discovery plan.
4. Better Search
Although keywords will remain the dominant form for searching for relevant information, we expect to see better workflow surrounding keyword searches, and more use of other search technologies, such as conceptual categorization, assisted review, and machine learning. We are already past the adoption curve, and 2017 will be the year TAR becomes mainstream in Canada.
5. Better Organization
Information Governance has become a catch phrase. Most boards now discuss how they can better govern their information. While the growth has mainly been due to an increased awareness in cybersecurity, e-discovery will benefit from better organization of the information and less ROT to sift through to find what we need.
After a couple of years of lackluster innovation and somewhat slow growth, we expect 2017 to be a watershed year for e-discovery in Canada.
 We guarantee that our predictions might or might not come true
Commonwealth countries continue to approve technology-assisted review (TAR) for e-discovery. In mid-2016 we started to see cases coming from the UK courts endorsing the use of TAR; recently, Australia followed suit.
In one case, the Australian Federal Court ordered one party to disclose several specific aspects of its TAR workflow to the opposing party. Meanwhile, the Supreme Court of Victoria went so far as to endorse the use of TAR to review 1.4 million records, and appointed a special referee to manage the process (see McConnell Dowell Constructors v. Santam Ltd.).
We already know that the use of TAR and predictive coding is prevalent in the United States (how else could the FBI have reviewed 650,000 emails in only 9 days?). In fact, US judges have not only given TAR their seal of approval, but have actually directed parties to use it. In Canada, however, our courts have not been so bold. We know that parties to litigation are slowly starting to accept and use TAR, but to date we have not seen any orders from Canadian courts requiring it, or specifically endorsing its use.
With so many matters being case managed, this is the perfect opportunity for Canadian courts to weigh in. Let’s hope 2017 is the year that TAR becomes trendy in Canada too.
e-Discovery is a double-edged sword. There is an initial anticipation of using some new software and techniques to deal with the volume of data, but then reality sets in and you are buried in poorly processed and filtered data that you need to sort out for the legal team, usually under tight time constraints and in a charged atmosphere.
Most litigation support departments focus on the current problem – getting the database up and running, generating TIFF images, printing the documents the lawyer needs for discovery or trial, etc. They rarely have time to sit back and look at the problems from the 50,000-foot level. It’s akin to the whack-a-mole game we played as kids – tackle one problem and another one pops up right away.
e-Discovery is a process. Regardless of the particular issues in a matter or the type of information being dealt with, litigation support departments need to adopt a standard way of dealing with the material. We’ve all seen an increase in the volume of information associated with litigation matters. A single PST file will contain upwards of 100,000 records. The typical matter now involves collecting gigabytes of data. Whacking one lit support problem and then moving onto the next is not sustainable.
A better solution is to develop a set of practices that are easy to follow. Create templates for loading data into the lit support software, standardize fields and create a chart that maps metadata to those fields. Put together standard instructions that can be given to clients who collect their own data so that it arrives in a useful form. Work out procedures with vendors you rely on for data collection, processing and hosting to ensure they fit into your process, rather than trying to make your process fit into theirs.
e-Discovery does not have to be an outdated amusement park game. It can be so much more fun than that.
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