eDiscovery is evolving in new and exciting ways around the globe – we explain the latest trends in this fast-moving area of legal technology.
The eDiscovery industry continues to grow apace, and it is expected to be worth US$30bn by 2025, due in large part to the overwhelming proliferation of data and digital devices. This growth is correspondingly driving innovation and sector maturity. In this article, we take the opportunity to step back and reflect on some of the recent trends in eDiscovery from around the world.
Enabling conformance with strict national security and data localisation laws
eDiscovery is booming across Asia. In China, one of the drivers for eDiscovery use is to enable compliance with cross-border data transfer rules which prohibit certain information types from being sent to other countries. There is an ever-growing demand placed on citizens and businesses to respect ‘cyber-sovereignty’ (网络空间主权); a concept which is borne out of China’s recent political and social history. At its core, much of China’s legislation concerning national security and data is about ‘data localisation’; the legal requirement for any data on the country’s citizens to be collected, processed, and stored domestically, before being transferred internationally. Legal counsel in China is using eDiscovery processes and tools to analyse raw and structured data as a prerequisite to sending it overseas, in a form which protects national security and personal identity. Where multinational companies operating in China are caught up in litigation necessitating legal disclosure, eDiscovery is playing a vital role in enabling compliance with legal due process in a manner which is both cost-effective and efficient.
The transformative potential of artificial intelligence (AI) is being realised
For litigation teams, eDiscovery projects are typically undertaken under considerable pressure, with limited people resources and time. Add to this the complexity of dealing with multiple languages and dialects, and the process can become a minefield if not tackled with the utmost rigour and adherence to process. Artificial intelligence and ‘neural machine translation’ is revolutionising the process of technology-assisted review (TAR) if documents of interest are written in several languages. Some solutions will automatically detect the languages used and can cope with industry terminology (e.g. medical and legal). Whereas traditionally, the time and cost associated with a manual translation may have been prohibitive, machine translation is removing this barrier, enabling affordable cross-jurisdictional document analysis.
Beyond its use for language translation, as AI is increasingly integral within eDiscovery solutions, it is being used more frequently, at more stages of the process, and even by other departments who have realised it’s potential (e.g. by HR departments). Unsupervised machine learning is now able to automatically categorise and sort vast volumes of unstructured data into logical groupings. Furthermore, because of the vast potential of automation and AI to slash costs and drive efficiency, proactive eDiscovery is now viable. This is enabling firms who would otherwise have used best endeavours to react to disclosure requests, to have already organised and classified data in readiness. This has the overall effect of lowering litigation costs and risks and increasing the speed of response.
eDiscovery is being shaped by legal practice and laws
Legal changes such as the Federal Rules of Civil Procedure (FRCP) in the United States, the introduction of the EU’s General Data Protection Regulations (GDPR), and new case law is further evolving eDiscovery. Legal cases are testing the boundaries and processes, such as concerning access rights for social media discovery, requiring individuals to provide passwords, and how to deal with the deliberate deletion of data by parties to litigation (e.g. texts, photos, videos) on mobile devices.
We are also increasingly seeing, as a matter of course, that Courts are imposing requirements on litigant parties to work together to define and agree on the scope of eDiscovery before work is undertaken.
End-to-end eDiscovery solutions are in demand
As eDiscovery has evolved in recent years, many firms have developed their capability by combining and integrating several tools, to cater to each step of the EDRM process. This approach can lead to complications, for example, if one software product is updated, and as a result, formats, standards, or protocols are changed, this may cause a failure in the next part of the process. According to Gartner’s Market Guide for eDiscovery Solutions report, vendors are increasingly seeing demand for end-to-end user experience, removing the burden on firms to ensure continued compatibility and workarounds between different products. This, in turn, is making eDiscovery solutions more intuitive, faster to use, and improving the quality of processing, review, analysis, production, and presentation.
As the demand for eDiscovery solutions gather pace globally, and beyond its traditional domains, the requirements being placed on them are growing, leading to increased technical capability, and maturity. As such, eDiscovery is now being actively shaped by many forces; the future of this technology can only be imagined.
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