Not wanting to be left out of the “predictions party” that always seems to take place every December – yet trying to be at least a little bit different – we thought we’d wait until the first week of 2010 to try on our predictions for the year.  And rather than making outlandish predictions about what will/won’t happen in this year of recovery, we felt it more appropriate to focus on several key trends we see dominating the information and risk management spaces…which include at least to some degree eDiscovery, enterprise search/KM, records management, GRC (Governance, Risk, Compliance) and email archiving.

Despite all the technology involved in eDiscovery, the process has always included a critical – and costly – human element: linear review. In a typical case, roughly 70% of the cost is generated by the tedious, error-prone and stupendously inefficient phase of “document review,” which involves platoons of contract attorneys reviewing and tagging individual documents one at a time -- and billing an average of $75-$100 per hour to do it, but in some cases as high as $300 per hour.  This legacy, paper-based process being used in a digital world is known as “linear” review…and is about to become obsolete.

In late 2009, several trends converged to bring about a sea change in eDiscovery:

• Predictive Coding™ technology is now accurate enough to take the place of contract reviewers – with superior results
• The technology is now fully defensible thanks to random sampling of the automated output
• Judges have demonstrated that they consider automated review acceptable, and in many cases perhaps event preferable, giving corporations and law firms the confidence to use the technology on a day-to-day basis

Now that the obstacles to automated eDiscovery have disappeared, the financial argument becomes irresistible. Some of the world’s largest law firms are saving millions of dollars per case through automated review, and the rest are sure to follow. Starting in 2010, automated review will steadily replace the linear model, which will soon seem as outdated as typing pools and punch-card data entry.

Corporations will flock to the novel notion that ECA technology must assess a case “early”   

The most important word in “early case assessment” (ECA) has always been the first one. But ironically, “early” is what most ECA tools fail to deliver.

ECA technology and vendors promise to  quickly and accurately determine eDiscovery risks before litigation gets underway; counsel can then formulate a litigation budget and decide whether the potential benefits of a proceeding outweigh the likely risk and costs of discovery. The strategy only works, however, if ECA happens at an early stage. Too often it doesn’t. Most early case assessment tools are incapable of assessing anything until ESI has been 1) identified by the legal department, 2) preserved by internal staff, 3) collected by internal staff and/or outside consultants, 4) sent to a third party to be processed before 5) being ingested again into an ECA or review tool. Typically, this takes weeks, if not months, after an event begins, negating the advantage ECA is supposed to deliver.  And vendors have for the most part exacerbated this phenomenon as they, in essence, offer culling tools masquerading as ECA tools.

Nevertheless, the benefits of ECA are real, if it takes place from an event’s outset – at or before preservation and collection and long before ingestion, culling and processing. Recognizing this, companies will increasingly look for specialized ECA technology that can assess cases from the outset of an eDiscovery or regulatory event, allowing them to formulate strategy before they spend millions of dollars on collection, processing and review.       

IT will look for ways to go beyond “spring cleaning” with content

The problem of uncontrolled and disorganized content growth will continue to command attention thanks to  1) mounting storage costs from file shares, email archives, and even tape, 2) seemingly insurmountable records management issues, 3) stringent regulatory response requirements, and/or 4) continuously growing eDiscovery risks and costs. 2010 will be the year when the costs and risks posed by information start outweighing the tendency to “keep everything”, leading to an evolving IT mindset with respect to content.  As with ECA, we will see a trend toward using automated categorization and other analytics proactively, earlier in the information lifecycle – in this case, regularly culling data the company has no reason or obligation to store.  As part of this conversation (perhaps even the focal point), many will start to realize that email can and should be organized…for all of the aforementioned reasons plus far greater employee productivity.  In fact, this conversation has already begun…

Advanced eDiscovery technology will improve large law firms’ business models

With ongoing sluggishness in the economy, law firms, consulting firms and litigation support providers are under tremendous pressure to demonstrate value, and deliver lower, more predictable costs (for instance, through Alternative Fee Arrangements such as fixed-cost contracts). This pressure may well represent a “new normal” that will persist even after the economy recovers. Yet firms are reluctant to do anything that will reduce their profitability (aka annual partner bonuses). Advanced technology will allow them to have their cake and eat it too. With automated eDiscovery, for example, these firms can reduce their own eDiscovery costs by 50-80%, in turn allowing them to pass on some/most/all of these savings to clients.  This in turn allows them to become far more aggressive in pitching new business in the form of lower rates or fixed-fee arrangements.  The billable hour may not be dead or even dying, but it is certainly under attack.

In the ramp-up to recovery, enterprises will rediscover expertise location

Leery of hiring during a slow recovery, corporations always want to extract more productivity from the employees they already have. This time around, many will turn to expertise location software to make their organizations much “flatter” and more efficient. With  experts on any topic only a mouse-click away, employees can quickly come up to speed on unfamiliar topics—something that will also help companies hire quickly when the upturn finally arrives.