5 Daunting. Problems. Facing Ediscovery. Insights on ediscovery challenges in the legal technologies market

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1 5 Daunting Problems Facing Ediscovery Insights on ediscovery challenges in the legal technologies market

2 Introduction In the late 1990s, ediscovery was in its infancy as legal and IT professionals began to confront production challenges associated with computer data. At the turn of the century, with the exception of a few earlyadopters, there was widespread denial that the ediscovery fad would survive. No judge will ever order me to produce an , was a common response from lawyers struggling with the discoverability of electronic data. Today, look how far we have come. We now know ediscovery is here to stay but the industry faces new, complex challenges. The ediscovery marketplace today is not unified or simple. Technologies and methodologies are complex and varied. Law firms and corporations yearn for best practices and proven technology to yield time and cost savings. In the past year, Kroll Ontrack has discussed these issues with ediscovery professionals in focus groups, software user communities, partner program meetings and the Kroll Ontrack Client Advisory Board. The result: this booklet, which outlines the biggest challenges facing ediscovery in the next five years. The challenges are monstrous and the solutions are still developing. In 2013 and beyond, Kroll Ontrack is committed to working to resolve today s discovery problems.

3 #5 The rules and technology are always changing. There is no rest for the ediscovery weary. Ediscovery variables are in a constant state of flux. Consider these significant changes impacting ediscovery over the last 15 years.» Data sources are increasing in number and complexity. From tapes and USB drives to mobile devices and the cloud, IT professionals are constantly evolving the format on which data can live and how it can be accessed.» Big data is becoming bigger data. Ten years ago, a single custodian generated hundreds of documents; today, it is not uncommon for a custodian to generate millions of documents. It is projected that, by 2020, organizations will need to deal with 50 times more information than they are managing today.» Rules and regulations governing litigation across the globe are constantly evolving. With differing types of legal systems, hundreds of countries and thousands of new laws being enacted annually, sands of ediscovery are constantly shifting.» The line between personal and professional is blurring. With companies now enacting bring your own device (BYOD) policies and integrating social media platforms into business practices, security risks are greater than ever.

4 High Ediscovery Technology Developments over Time ESI Discoverability Multilingual Data TAR Impact Keyword Search Dedupe Topic Grouping/ Concept Searching EDA Cloud PDF vs. TIFF vs. Native Review Analytics Social Media Low Paper & ESI Tools Converge BYOD Emergence Audio -Threading/ Near Duplication

5 #5 The rules and technology are always changing.

6 #4 Costs are unpredictable. In a world of shrinking ediscovery budgets and growing ESI volumes, ediscovery professionals must do more with less. This fact places an incredible focus on the bottom line and drives erratic and fragmented ediscovery pricing. The ediscovery pricing landscape is defined by:» Pricing models and ediscovery costs have dramatically changed in the last two decades. However, everyone thinks ediscovery is still too expensive.» Impossible price shopping. Despite best efforts to compare ediscovery providers on a grid, it is impossible to conduct apples to apples comparisons.» Frivolous litigation activities driven by cost-shifting arguments. Litigation is often no longer about the merits of the case, but instead, lawyers are using costs as a weapon to play gotcha with their opponents.» Volatile ediscovery project parameters. Scope creep is commonplace, resulting in ediscovery budget overruns.

7 Zetabyte ~$4000/GB Ediscovery Cost and the Digital Universe Ediscovery Processing Charges Exabyte Petabyte Terabyte Total Data Volume in Digital Universe Ediscovery costs decline while data volumes increase. ~$500/GB

8 #4 Costs are unpredictable. $ $$$$ $ $

9 #3 TAR is underutilized. No ediscovery technology has the potential to modernize document review practices more than Technology Assisted Review (TAR). Studies show that review time and costs can be cut in half (or more) with TAR. However, in 2012, TAR was principally used only in big cases. Why is TAR (also known as predictive coding, intelligent review and computer assisted review) one of the biggest ediscovery issues in 2013?» There is concern that TAR will replace the need for lawyers. Ediscovery professionals must understand that TAR will let both machines and humans do what they do best. Lawyers will still be involved in advocating for their clients, establishing the review process and evaluating the outcomes.» Legal teams are concerned about TAR defensibility. Even though eyes on every document review has been deemed unduly burdensome and inconsistent in determining relevance, legal professionals still depend on this manual method of review for most cases they encounter, citing concerns about defensibility.» More hands-on training is needed. There are volumes of information and CLEs available to teach ediscovery practitioners what TAR is, but training on how to best leverage this technology is limited.» The technology and best practices are not yet standardized. Standard terminology and methodologies for conducting a review using TAR are still emerging. Further, technology features across products vary drastically and comparisons are complex.

10 TAR Case Law Developments Da Silva First federal court endorsement of TAR Feb Kleen Products Significant TAR expert witness testimony Mar Global Aerospace First state court endorsement of TAR Apr In re Actos Plaintiff and defendant agree to TAR July EORHB Court independently requires use of TAR Oct

11 #3 TAR is underutilized.

12 #2 Case analytics are primitive. Law firms and corporations are clamoring to understand their ediscovery data across multiple cases. Ediscovery professionals need more useful metrics, such as those listed below, to make better decisions that result in litigation management efficiencies.» Volume analytics across cases» Collection and preservation information from current and past ediscovery projects» Search metrics identifying key terms and concepts» Production statistics that include the number of times a single document has been produced and volume of production data per custodian» analytics about a custodian s social networks, time and date frequency and top subject matters» Spending totals per matter, per custodian, per file type and per location» Records of archived or deleted data A big picture view of an organization s litigation data ensures maximum predictability, affordability and defensibility. More importantly, uniform content management practices from creation of information through discoverability, archiving and deletion are only achievable with more robust metrics and dashboards at each step of the ediscovery process.

13 If I only had a magic ediscovery remote control... ON Show me where my data is NOW! Am I at risk for sanctions? Can I delete? How much will this cost? Will the opposing party agree? Help me make better decisions.

14 #2 Case analytics are primitive.

15 #1 Ediscovery is transactional. The lifecycle of any issue evolves from chaotic innovation to controlled normalization. Where ediscovery is concerned, corporations and their counsel seek to exchange the one-off, project oriented approach to ediscovery for the process and product oriented approach. How can organizations make ediscovery practices more repeatable and predictable?» Corporations and law firms must stop solely relying on manual processes. Today, it is not uncommon for ediscovery practices to be invented and reinvented with each litigation matter.» Consistent resources must be dedicated to ediscovery tasks. Familiarity with ediscovery obligations increase with each matter. As teams become seasoned in collecting, reviewing and producing data, they will seek ways to eliminate inefficiencies.» Organizations need better cooperation between legal and IT. The teams responsible for ediscovery often function in a vacuum, managing information silos with temporary bridges and connectors between them.» Technology must be deployed to provide the backbone for process. Software drives standardization. Ediscovery standardization will not exist until dedicated teams are linked to consistent ediscovery and information management software platforms.

16 All of these issues are symptoms of a larger problem: An erratic ediscovery approach $ $ Law is constantly changing Costs are unpredictable Technology is still developing People need more training Big data is even bigger data Processes are underdeveloped Data sources are increasing Solution Ediscovery emerged in the legal space, but it must evolve into a business-focused, strategic effort, tightly integrated with overall information management practices and comprehensive technology solutions.

17 #1 Ediscovery is transactional. $ $

18 About Kroll Ontrack Kroll Ontrack provides technology-driven services and software to help legal, corporate and government entities, as well as consumers, manage, recover, backup, search, analyze and produce data efficiently and cost-effectively. In addition to its award-winning suite of software, Kroll Ontrack provides data recovery, data backup, data destruction, electronic discovery and document review services. Kroll Ontrack is a subsidiary of Altegrity, an industry-leading provider of information solutions. For more information about Kroll Ontrack and its offerings please visit: About the research From January to December 2012, Kroll Ontrack staff interviewed industry experts lawyers, litigation support professionals, paralegals and IT staff in law firms and corporations. These experts were asked about their biggest ediscovery challenges in the next five years.

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