E-DISCOVERY AND E-DISCLOSURE 2013 The Ongoing Journey From Reactive E-Discovery to Proactive Information Governance Evolving technologies are expanding the need for effective electronic discovery in legal and regulatory matters to enterprise organizations of all sizes. However, 451 Research data and recent case law suggest that the message of proactive information governance may not yet be reaching this potential new market. KEY FINDINGS Lawyers may be enthusiastic about the prospect of comprehensive information governance as a means to reduce litigation e-discovery risks, but data from 451 Research s ChangeWave service indicates that non-lawyers, senior executives, and IT staff in small and medium-sized businesses may not be placing a high priority on these legal and regulatory needs. In addition, recent case law and the enterprise BYOD trend indicate that the state of corporate data is more like the Wild, Wild West than a realm of comprehensively governed information. Social media and mobile data have changed the legal landscape in e-discovery, as the proliferation of social data has made e-discovery a factor in legal matters where it was rarely an issue before from everyday slip-and-fall cases to divorce actions. E-discovery isn t just for big cases tried by big law firms anymore, and we see this trend continuing because social media platforms aren t going away anytime soon. In addition, this social media information and other types of data are found increasingly on mobile devices, further complicating the e-discovery challenges. Assisted-review technologies such as predictive coding which employ artificial intelligence in an iterative learning process to assist attorneys in the e-discovery document-review process gained greater acceptance in 2012, beginning with the first known judicial blessing of predictive coding in February. Assisted-review technologies gained traction throughout the year in a series of court cases, culminating in a court ordering predictive coding in October without the litigants even asking for it. We see this trend continuing in 2013, if for no other reason than that legal teams are being buried under an avalanche of big data. Differing global views of data privacy have been important factors in international litigation for some time, but with the explosion of big data and new data privacy initiatives under consideration in Europe, the international data-privacy divide is growing, and we expect this issue to persist. MARCH 2013
REPORT SNAPSHOT TITLE E-Discovery and E-Disclosure 2013 ANALYST RELEASE DATE March 2013 LENGTH David Horrigan, Esq., Analyst, E-Discovery & Information Governance 49 pages ABOUT THIS REPORT Evolving technologies are expanding the need for effective electronic discovery in legal and regulatory matters to enterprise organizations of all sizes. Social media, mobile data and the BYOD trend have changed the landscape, and e-discovery isn t just for big cases tried by big law firms anymore. This sets the stage for a shift from traditional reactive e-discovery practices to more proactive information governance initiatives. However, while lawyers may be enthusiastic about the prospect of comprehensive information governance as a means to reduce litigation e-discovery risks, 451 Research data and recent case law suggest that the message may not yet be reaching this potential new market, as non-lawyers, senior executives and IT staff at SMBs are not placing a high priority on these e-discovery challenges. This report examines the state of the e-discovery market, including the impact of assisted-review technologies, data-privacy regulations and the explosion of big data.
TABLE OF CONTENTS SECTION 1: EXECUTIVE OVERVIEW 1 1.1 INTRODUCTION....................... 1 1.2 METHODOLOGY....................... 2 SECTION 2: E-DISCOVERY AND INFORMATION GOVERNANCE OVERVIEW 4 2.1 EVOLVING FROM E-DISCOVERY TO INFORMATION GOVERNANCE?.... 4 2.1.1 Attempting to Change the E-Discovery Model to Information Governance.................. 4 Figure 1: The Electronic Discovery Reference Model (EDRM)....... 5 Figure 2: Breakdown of E-Discovery Costs............. 6 Figure 3: The Information Governance Reference Model (IGRM)...... 7 Figure 4: Overall Importance of Information Governance Programs..... 8 Figure 5: Importance of Information Governance Programs Based on Size of The Enterprise................... 8 Figure 6: Importance of Information Governance by Industry....... 9 Figure 7: Importance of Information Governance Programs by Job Function.. 9 Figure 8: Importance of Information Governance by Jurisdiction..... 10 2.2 THE ROLES OF LAW FIRMS, ENTERPRISES AND SERVICE PROVIDERS... 10 SECTION 3: LEGAL TECHNOLOGY TRENDS 13 3.1 SOCIAL MEDIA AND OTHER EMERGING DATA SOURCES........ 13 3.2 ASSISTED-REVIEW TECHNOLOGIES................ 15 3.3 THE BYOD TREND..................... 16 SECTION 4: 2012 LEGAL AND REGULATORY REVIEW 18 4.1 US FEDERAL AND STATE CASE LAW.............. 19 4.2 EU LEGAL AND REGULATORY DEVELOPMENTS........... 30 4.2.1 Jackson Reforms in the UK............... 32 E-DISCOVERY AND E-DISCLOSURE 2013
SECTION 5: MONITORING THE MARKET 33 5.1 M&A.......................... 34 Figure 8: Notable E-Discovery M&A Deals in 2012..........35 5.2 VENDOR DIRECTORY.................... 36 SECTION 6: CONCLUSIONS AND OUTLOOK 47 RELATED RESEARCH: 451 MARKET INSIGHT SERVICE REPORTS 48
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