The Maturing Marketplace for eDiscovery Services and Tools

EDiscovery is essentially a brand new field. It arises in the context of technologies that did not exist just a short few years ago, and many of today’s litigators remember matters that didn’t involve a single email or text message, which is now extremely rare. In fact, the bulk of jurisprudence in this area is barely ten years old (commencing with the Zubulake decisions in 2004 and continuing with cases addressing the 2006 Amendments to the Federal Rules of Civil Procedure).

On top of its newness, eDiscovery continuously reinvents itself. At least three factors can be seen to drive this ongoing change. First, discovery law must adapt to the ever-evolving technologies that litigants use to create, access, convey and store their information. Precedents set in cases involving emails and laptops, for instance, must be re-interpreted and refreshed in the context of mobile app contents stored in the cloud, or whatever comes next. Second, challenges to the sufficiency of a party’s discovery efforts have become routine, and there is the potential for such a dispute in just about every case. This has resulted in thousands of legal opinions that have been written to resolve eDiscovery issues. The body of applicable case law has expanded incrementally with each one, and rapidly because there are so many. Third, like the advancements in information systems that are the targets of eDiscovery, there have been significant developments in the tools, technologies, systems and methods used to “do” eDiscovery. New ways to access, to interpret and to extract meaning from massive discovery databases continue to emerge, and these new analytic tools make the process more sophisticated, nuanced and complex than ever.

What it means to practice law, moreover, has changed dramatically for those who focus on this novel and evolving field. EDiscovery is integral to litigation, and like other aspects of representing a client before a tribunal, it must be performed by licensed attorneys, consistent with the applicable rules of unfolding case law. But the process itself can be likened to a supply chain (of custody) — a program or process erected to mine, refine and extract case-relevant information from a client’s native repositories. In this regard, it is a highly technical, multi-faceted operation, involving dozens of individuals (not all of them lawyers), vast amounts of electronic data, and a significant amount of technology (and technical expertise) to complete. This required blending of legal acumen, technical proficiency and technological resources can be tremendously expensive, and putting these pieces together economically, and successfully, is no simple matter.

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