Legal hold processes continue to be automated due to their critical role. This helps to push archiving and early case analysis and con- vergence with Governance, Risk Management, Compliance (GRC) processes and systems.


Schiendlin’s Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Secs, have highlighted the risk of inadequate efforts for legal holds and information preservation. Decisions like these increase the pressure to archive data and to properly manage and document legal hold processes.


Multimedia convergence will con- tinue to lead to privacy issues as the mix of business and personal tech- nology continues. Smart phones, Ipads, tablet computers, eReaders and the like are growing in popularity.


6 7


Advances in technology affect what is seen as proportionate and what is seen as inaccessible. The revision of the Federal Rules of Civil Proce- dure in 2006 made the distinction between readily accessible and not-readily- accessible media important to eDiscovery and promoted the notion of proportionality in eDiscovery. As technology continues to advance, however, the distinction is going to become increasingly blurry. The cost of extracting data from tapes, for example, has plummeted. Other formerly inaccessible me- dia are rapidly becoming more accessible.


8 44


Employees expect to have the capabil- ities that these machines provide at all times, whether or not they are provided by their em- ployer. Business users are increasingly using their own devices or are mixing entertainment media with business communications on these devices. The intermixing of personal and professional files will challenge eDiscovery processes and practice and lead to increasing disputes over privacy.


Recent decisions, such as Judge


Planned inefficiencies will be increasingly more dif- ficult to use as justification for avoiding eDiscovery. Early case assessment becomes full


ingly accepted, the traditional linear kind of process described by the venerable EDRM flow chart is being replaced by more interactive, iterative, processes.


9 What started out as early case assessment is


gaining capabilities to provide analytics and selection capabilities throughout the matter’s life cycle. Tradi- tional eDiscovery service and software providers are offering more of the capabilities that have character- ized early case assessment and more of the early case assessment service and software providers are offering capabilities more typical of the traditional eDiscovery providers.


10


Corporations increasingly demand control over their eDiscovery processes and expenses. Paraphrasing


Justice Breyer, if it costs millions of dollars to do eDis- covery, then litigants who ought to be there, will be driv- en from the justice system. Corporations are increas- ingly reluctant to write blank checks for eDiscovery.


Many are trying to bring at least the initial stag-


es of eDiscovery in-house, where they think that they can do it better and cheaper. Outside counsel are being pressured to improve their efficiencies, typically with appropriate technology. These pressures will lead to increasing uses of “alternative fee arrangement,” more opportunities for corporate consultants, more use of technology, and more training opportunities.


"Pressures will lead to increasing uses of alternative fee arrangements."


cycle data analysis, starting with collection and leading through to production and trial preparation. As technology improves, and more importantly, as it becomes increas-


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