2010: Litigation Support and eDiscovery Trends

From the December 2009 issue of The Metropolitan Corporate Counsel^®

Bob Tennant is the Chief Executive Officer at Recommind, a position he has held since late 2001.  His thoughts on litigation support and e-discovery trends:

As we approach the end of a difficult year in 2009, there is no better time to reflect on the current state of litigation support and eDiscovery and examine the trends emerging for 2010.

Emerging Technologies Causing eDiscovery Nightmares

The rapid growth of electronically stored information showed no letup in 2009, and it promises to accelerate in 2010, as companies grapple with information risk from new sources, such as Web 2.0 tools, cloud computing, unified communication and virtualization. These technologies present unique eDiscovery challenges that will keep in-house legal professionals (and their outside law firms) working at full capacity.

Of particular concern is corporate interest in moving active data to offsite “cloud” storage. This increasingly common practice raises important questions for litigation support professionals. How quickly can data be returned in the event of discovery, subpoena or regulatory request? In what format will data be returned? Is data fully searchable while stored in the “cloud,” so that only responsive data is returned? What about disposition of data instead of sending it offsite? At the very least, litigation support professionals will need to have input into service level agreements associated with these types of arrangements, and may even need to test vendors’ capabilities with mock regulatory inquiries.

Regulated companies, such as those in financial services, biotech and pharmaceutical, oil and gas, and telecommunications will continue to take a cautious approach to these technologies on account of concerns related to eDiscovery and compliance. In 2009, we began to see corporate legal departments brought in during IT evaluations to assess the impact of new technologies on eDiscovery, compliance and retention. We expect this trend to continue into 2010. In fact, many of our regulated clients have created the role of IT/Legal Liaison to facilitate internal discussion, consensus and cooperation between their companies’ IT and legal departments. This IT/Legal Liaison acts as a project manager with specialized knowledge of both legal technology and processes. Corporate budgets for this type of role are also expected to increase in 2010.

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