e-discovery predictions for 2009

DiscoveryResources has published a list of 20 top e-discovery predictions for the coming year.

These in particular struck me:

5. Software as a Service will start gaining inroads due to lack of credit and a reluctance to make capital purchases.

i.e. hosted discovery services. I’ve been using these for about 5 years now and the people I am currently with, Trilantic, have proved good, responsive and, which the clients especially like, inexpensive. The days are gone when these people had you over a barrel and could charge pretty much what they liked — now there is more flexibility and the hosting charges themselves are so low that they are pretty much a no-brainer, even for cases that are not particularly document heavy.

12. e-Discovery providers will discover diversity and alternative billing.

See above.

13. There will be a dramatic increase in international e-discovery (e-disclosure) requirements due to the financial crisis, arbitration, class actions and competition law.

I think this is going to be linked generally to a more intrusive (invasive?) regime of regulation that will be ushered in by the Obama Administration and by the exigencies of the post-crash landscape.

19. Insurance providers will get involved earlier and more visibly in the e-discovery process.

Definitely so. At least on the bigger cases, though it may be more difficult to justify internally on disputes that don’t appear so large or complex. One problem here is that it is not always immediately obvious that a case will become that difficult/costly until you are quite a way into it, and the temptation is (in the UK at least) to defer the decision to go electronic for a while. Of course, the further you go in a case without going electronic the more difficult it is finally to take the decision, and the more benefit is lost as a result of that delay. I push for early adoption where I even suspect it would help.

20. Law firms will be sanctioned for not having their own e-discovery houses in order.

I am not sure whether ’sanctions’ here means some actual costs penalty against them, but if so I think we may be a little way off that in the UK. However, I’ve recently seen, for example, an arbitration tribunal suggest quite positively that a party complaining of being swamped by the other side’s documents might do well to adopt (as it had not done until then) an electronic system to deal with the papers, and I think we will see an increasing number of such suggestions until, in a few years time, it really is the norm and thus sanctionable if not adopted.