2012 Predictions 2: Discovery Divinations and Much More

Today’s cheeky taster from the predictions chocolate assortment is a melange of forecasts from three men with special e-disclosure expertise, but it goes beyond e-disclosure to offer undertones of praline and a strong after-taste of essence of law firm practice. Read the predictions of Andrew Haslam, Mike Taylor and Charles Holloway.

From Mike Taylor of i-Lit Limited (www.i-lit.co.uk), barrister turned technogeek who has advised law firms and their clients on e-disclosure best practice and strategy since 2006

1. The first Software as a Service e-disclosure data processing solutions will appear in the UK market place. This cost effective alternative will open up e-disclosure to lower value claims as well as increase the level of disputes between lawyers about e-disclosure itself.
2. The topic of Computer Assisted Review will continue to be hyped by providers and commentators alike. Uptake of the service will remain low with it being used as a prioritisation tool rather than a pure review tool.
3. Even more small e-disclosure service providers will spring into life as it becomes easier and easier to buy and use ‘off the shelf’ e-disclosure software products (with varying levels of success).
4. Whilst cost will continue to play a dominant role in decisions made by law firms on what e-disclosure service providers and tools to use, poor experiences on cost overrun and quality of service will start to adversely affect some e-disclosure businesses.
5. Law firms that do not yet have an effective e-disclosure strategy will really start to feel the pressure from well prepared opponents.
6. Despite the UK not having a ‘discovery’ process any more many well known commentators will continue to insist on referring to UK e-disclosure as e-discovery, fuelling the perception that what we do in the UK is identical to that which is done in the US. It is not.
7. Whether to outsource, insource, offshore, inshore or nearshore review services will continue to be at the forefront of litigation departments minds, with more and more opting for insourced services as offshoring starts to look like less good value for money.
8. Disclosure of social media data in most commercial disputes will grow but not to any great level, it seems to me to be becoming apparent that any social media, regardless of how it markets itself, is 99% social with almost no actual business being done in this forum and so it is pretty easy to argue that it is disproportionate to examine this data source.

From Andrew Haslam of Allvision Computing, independent litigation support consultant who provides specialist legal IT advice and Electronic Data Disclosure (EDD) strategy to the UK’s top law firms

Despite what the Mayan calendar says the world will not come to an end, though it might seem so for some people. In particular the following will be affected.

1. Law Firms – Never mind ‘Tesco law’, the advent of Co-op Legal Services will dramatically change the legal landscape, though it will be more of a gradual ‘landslip’ as the ground erodes from under your feet, than a ‘landslide’ or even ‘avalanche’ effect. The firm has stated ambitions of putting one or more lawyers into every store it has throughout the UK, so some 8,000 plus lawyers to start with. It has successfully carried out lateral hires in its key areas, and is looking to change the way in which it organically grows by recruiting straight from school/university and training in-house. It has tasked its own software development resource with providing it with applications (workflow, document management, disclosure/litigation support) that are built to their standards and not to the niche that is the legal sector. Finally, it has a business model that does not have to sustain a partnership, lock-step and annual six figure PPP, with a command structure that can just get on with it. At a time when lawyers are regularly judged to be as trustworthy as estate agents, the power of a high street brand name should not be underestimated.
2. Litigation Support Vendors – There will be ‘blood in the water’ as the increasing volume of information to be processed exacerbates the pressure on the current per GB pricing model. Constant demands from prospective clients for, on the one hand, a mechanism for dealing with the very small trickle of electronic information at the start of most cases yet, on the other, the need to cope with increasing volumes of data for the cases that do come to fruition. The need for transparent, easy to understand pricing frameworks will drive suppliers to look for more innovative and reactive ways of pricing. In turn, the drive to differentiate themselves from the competition will lead to a further spate of consolidations, mergers and acquisitions. There will be functionality creep as software vendors add capabilities to extend their offerings into newer parts of the EDRM model. Early Data Assessment (EDA) tools will bolt on litigation support functions, as fast as the Litigation Support suppliers extend their EDA capability. The market will homogenise and what will be left to distinguish between the products will be the added value of the services. When you are going to have open heart surgery, you don't ask the consultant what type of scalpel they are going to use. Some vendors will be the Christian Barnards, others the Harold Shipmans.
3. Review/Coding ‘factories’ – Be it teams of in-house resources, or inshore/offshore personnel, the rise of the technology known as ‘predictive coding’ will reduce the reliance upon the most expensive part of the electronic disclosure process, that is the review by the Mark 1 human eyeball. There will still be a need for qualified human beings to interact with, and guide, the review tools, but pressure from clients and the courts will bring these tools firmly into the mainstream. There will be another UK case in which a judge will make comments about the availability of such technology and indicate that it should be used, but there will not be any pronouncements on which electronic ‘spanner’ or ‘screwdriver’ you should buy.
4. Data Collection Teams – The rise of social media in general, and Yammer in particular, will create even more headaches for the people tasked with identifying and collecting the data at the start of any process. People will be forced to hand over logins and passwords to various sites and HR departments will be kept very busy dealing with the fallout.

It will however be an excellent year for forward thinking individuals and companies determined to seize opportunity out of rapidly changing environments.

From Charles Holloway, Director at Millnet Financial Limited and lead contributor to the the Smart e-Discovery Blog

Predicting the future is a mug’s game! However, it is fun, so here are my 5 predictions for 2012, in no particular order:
1. Whether you call it inshoring, outshoring, outsourcing, northshoring or just stick with legal process outsourcing or LPO, it is likely that the process will continue to be in the news in 2012. There is so much difference between the rates of pay of a lawyer in Manila, Bangalore and Cape Town on the one hand and London or New York on the other that Managing Partners are bound to sit up and take notice. Add Belfast, Middlesbrough or Tunbridge Wells to the mix and Managing Partners are likely to find the whole concept irresistible. However, what happens if things go wrong? Examples might include that the quoted cost is not all inclusive of the benefits which have to be paid on top of salary in other jurisdictions, or that the quality is not as expected. English language skills may not be up to the expected standards and fluency may be way off. While accepting the benefits of outsourcing, 2012 may well be the year of a high profile instance of something coming badly unstuck.
2. A non lawyer (actually a PR consultant) said to me the other day that Third Party Litigation Funders (TPLF) had not yet had their day. I agree, but I think that TPLF is here to stay. Those I know something about are very busy and others are unable to raise the needed funds. Clearly there is no uniformity in the market. 2012 could be the year that we see a greater acceptance of TPLF in litigation, which does not of course rule out a spectacular collapse of a funder through backing the wrong case(s).
3. Technology Assisted Document Review (TADR) (or predictive coding as the technologists call it) is a hot topic. We have worked on a number of cases recently where TADR has been used. Not all have been entirely successful but the balance is overwhelmingly in favour of using this technology to reduce the costs of litigation. I predict a steady increase in its use.
4. Social media is much in the news. There is much one could say about the whole area but my prediction for 2012 in this area is that there will be the first decided case in this jurisdiction which mirrors the US District Courts’ rulings that access to social media sites and the relevant log-ins and passwords be given to the opposing party as part of the process of disclosure.
5. A long shot this, but 2012 will see the whole issue of data privacy and the transfer of data between the EU and the US take centre stage. Revisions to the EU Data Protection Directive due in 2012 may be the catalyst. What price safe harbor then?


Published: 2011-11-30T14:01:34

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