The Federal Rules of Civil Procedure were amended in 1970 to recognize that computerized information would become increasingly relevant in civil litigation. The rules were amended again in 2006 to accommodate new technologies and forms of electronic information.
In the less than two decades since the 2006 amendments, eDiscovery has seen what seems like four decades’ worth of changes and innovation. The way eDiscovery was conducted in the mid-2000s or even in the early 2010s has become “traditional” eDiscovery.
Since then, new eDiscovery tools have come onto the market that more easily manage the ever-increasing volumes and types of data that organizations must deal with in litigation. However, many organizations and their legal teams continue to use traditional eDiscovery tools and processes simply because they worked well in the past.
But traditional eDiscovery tools face four key challenges today.
Challenge #1: Traditional eDiscovery Methods Are Expensive and Time-Consuming
Using traditional eDiscovery processes and tools is becoming increasingly expensive and time-consuming for organizations and their in-house or outside counsel because litigants have more ESI, and more types of ESI, to manage during eDiscovery. When they identify, collect, and preserve ESI using traditional tools, such as those with sluggish importing, reviewing, and exporting functionality, organizations and their legal teams have to spend more time and money on these initial stages of eDiscovery—possibly exponentially more—because of the increasing amounts and types of data to process. Traditional methods of eDiscovery can make collecting and reviewing large quantities of data overwhelming for those organizations and legal teams with limited resources.
Traditional eDiscovery, which also frequently involves outsourcing most, if not all, stages of the process to outside vendors, can quickly obliterate litigation budgets in large, hotly contested legal disputes. In a time where organizations and their legal teams are placing an increasing emphasis on financial efficiency and cost-savings, the potential high price of traditional eDiscovery can seem like a step in the wrong direction.
Challenge # 2: Doing eDiscovery the “Traditional Way” Is Complicated and Inefficient
As organizations generate more quantities and types of data, their legal teams must deal with substantial amounts of ESI in many forms, including emails, various document formats like Word, Excel, and PDF files, direct messages, video and audio recordings, and social media posts. Legal teams frequently must recover ESI from several sources, including web servers, databases, computers, tablets, and cell phones. Document custodians may even, with or without their organization’s knowledge or permission, keep relevant “work” data on their personal devices.
Unfortunately, traditional methods of eDiscovery can struggle with the quantity and different types of ESI. Manually extracting copies of data from custodians’ accounts and devices can become complicated and poses a risk of incomplete productions of relevant data. Manually performing other steps of the eDiscovery process, such as audiovisual transcription, email threading, and deduplication is becoming increasingly inefficient because new tools use AI/machine learning to automate these tasks.
Of course, manual eDiscovery processes also increase the chances for errors, such as failing to produce relevant discovery or inadvertently producing privileged or confidential materials. The inefficiencies of traditional eDiscovery can delay legal proceedings, causing organizations and their legal teams to spend more time and money before they can resolve their legal issues and bring those proceedings to an end.
Challenge #3: Traditional eDiscovery Poses Security Risks
As the amount of data involved in eDiscovery grows, so too do cybersecurity risks. During eDiscovery, legal teams frequently handle confidential or proprietary data and personally identifiable information (PII). Traditional eDiscovery methods, such as transferring data to outside vendors, have inherent security vulnerabilities. Information can be copied or stolen during transfers. And, eDiscovery vendors might not be up-to-date on the latest cybersecurity standards, making them a prime target for bad actors looking to steal organizations’ data.
The organizations and legal teams that suffer security breaches using traditional eDiscovery processes and tools may face legal and financial penalties from government regulators and the courts. For example, attorneys may be sanctioned by courts for failing to preserve their clients’ or adversaries’ confidential or proprietary data, especially when a lawsuit has a confidentiality order in place. Organizations and their legal teams can also be subject to regulatory actions or lawsuits if PII is disclosed during a data breach. Even if organizations escape legal liability in these situations, there’s a good chance they could be found liable in the court of public opinion.
Modern eDiscovery tools avoid these risks by using browser-based or SaaS platforms that follow the highest cybersecurity standards. This ensures that proprietary, confidential, or privileged data is not vulnerable to theft when it is ingested or stored by these tools.
Challenge #4: With Traditional eDiscovery, Organizations Give Up Direct Control of the Process
Traditional eDiscovery involves outsourcing much of the eDiscovery process to outside vendors, including collection, processing, storage, and even preliminary review for deduplication or possible relevance. By giving up direct control over the eDiscovery process, organizations and their legal teams lose the ability to manage the quality and accuracy of the process, as well as its timeline and, potentially, compliance with discovery obligations.
Instead, they have to rely on the performance of third-party vendors to ensure a timely, accurate, and cost-effective eDiscovery production. Today, modern eDiscovery tools allow organizations and their legal teams to handle each stage of the process, including collecting ESI by syncing with commonly-used data sources like cloud storage or collaboration platforms, automatically converting data types, and using AI/machine learning to deduplicate and organize data for searching and review. These solutions let organizations and their legal teams retain full control over the eDiscovery process by keeping it in-house.
Things are changing fast in eDiscovery. Tools and techniques that were cutting edge a few years ago pose significant challenges when used today. The explosive growth in the quantity of ESI and the many forms it comes in can make relying on traditional eDiscovery methods and tools challenging and risky.
Modern eDiscovery platforms eliminate the inefficiencies of traditional eDiscovery methods by putting the entire eDiscovery process into one platform that leverages advances in data processing and AI/machine learning to help organizations and their legal teams compile and review ESI more quickly and accurately, but also more securely, than they could have done a few years ago.
By keeping eDiscovery in-house, organizations and their legal teams can retain control over—and increase—the efficiency and accuracy of the eDiscovery process while minimizing the risk of their ESI being stolen or otherwise misused.
Download our recent guide on Modernizing eDiscovery to learn more!