E-Discovery Trends in 2008

The E-Discovery landscape continues to change with dramatic speed and at Special Counsel we are well positioned to anticipate the needs of our clients. Although our focus is fixed on the horizon, it is only natural to begin the New Year with an examination of emerging trends in E-Discovery and large-scale project management seen over the last year.

In 2008, growth in electronically stored information (ESI) was perhaps best described as explosive, and the corresponding burdens placed on the discovery process increased in step. Decreasing storage costs contributed to the growing volume of stored data, as the financial burden of keeping information failed to force the hand of retention. With these realities in mind, the focus was aimed squarely on managing data in the most efficient and economical way. Broad trends in the industry included:

• ESI grew far beyond email, as prolific instant messaging (IM), wikis and blogs made their way into the discovery process;

• The legal community gave rapt attention to developments and decisions based on the revised Federal Rules of Civil Procedure relating to E-Discovery;

• High profile sanctions and rulings raised the stakes related to E-Discovery;

• Continued growth in the number and size of large-scale litigation and regulatory matters, due diligence and investigations all but demanded the support of contingent legal professionals;

• In years past, many of the mega-, or even large-scale, projects fell under the domain of the major metropolitan markets; in 2008 we saw a much greater geographic diversity of cities hosting review teams;

• The fact that we live in a global economy was evidenced by the proliferation of requests for review teams with foreign language proficiencies that have grown in size, regularity and the range of languages requested;

• Law firms and corporations sought partnerships with service providers that offer a sophisticated palette of choices, from dedicated project space to project managers that keep in step with the growing volume and demands of E-Discovery.

Although the concept of using contract legal professionals is not a novel one, necessity is proving to be a powerful motivator. Clients are discovering a newfound appreciation for: a skilled labor force at highly competitive rates; a workforce with specific, and often times extensive, hands-on review experience; and strong proficiency with a broad range of review tools. Additionally, the efficiencies of having a team of experienced reviewers with a single focus are proving invaluable to meeting review goals.

The cost of review is the single most expensive part of discovery, and that has driven much attention to innovation and creative solutions applied to document review. Technology has made dramatic strides in reducing data sets and this trend will continue at a breakneck pace, but the human element has its part to play. Additional trends related to managing the process and associated costs:

• Many law firms and corporations made considerable investments in building and/or growing internal capabilities related to E-Discovery with many firms creating dedicated practice areas, internal consultancies or specialists, and/or firm-wide task forces. The role of practice support within law firms grew both in scope and sophistication;

• Internal technical capabilities grew dramatically with the goal of creating a custom solution that does not deliver more or less functionality than needed;

• The regular use of off-site review centers took root years ago, but 2008 marked a turning point in wide-scale usage, as well as a very real appreciation for the benefits of having teams in dedicated review centers outside of a firm or corporation. Experience has borne comfort as clients are seeing the morale, productivity and management benefits of having a team in a centralized location with amenities;

• The scope and size of productions prompted many clients to choose off-site space to diminish the disruption and cost of hosting teams on-site. Related to this, our industry has moved past ad-hoc space and turned to an increasingly broad offering of dedicated centers built for the singular function of hosting and supporting document reviews.

Last year ended with a steady stream of headlines announcing law-firm cuts, dissolutions and a cloud of uncertainty over the hiring trends for 2009. In addition, much attention has been given to Legal Process Outsourcing both in terms of growth trends and the ABA’s ethics opinion on the practice (Ethics Opinion 08-451, August 2008). Based on our recent and historical perspective, we expect the following:

• Clients will have a strong appreciation for a more nimble workforce that enables them to have an “as needed” support system covering countless areas of practice, foreign language proficiencies and skill sets;

• We will see continued growth in the number of highly qualified and experienced candidates available for temporary placement and because of this, clients can build specialized teams for projects and can often have “veteran” candidates and/or teams return for future projects, maintaining historical knowledge;

• The temporary legal staffing sector will gain additional recognition within the legal industry as a valid career choice;

• Growing attention will be given to capabilities and offerings in second-tier cities such as Minneapolis, Pittsburgh and Dallas, as many clients consider housing projects outside of major metropolitan areas to further reduce costs;

• Many clients will still find on-shoring appealing based on a desire to have greater control, a lower margin of error, and to allay confidentiality concerns;

• Continued expansion in the number of clients seeking temporary attorneys or paralegals with foreign language fluency as opposed to translators if a certified translation is not required.

The temporary staffing industry was built on being prepared for the unexpected, and E-Discovery has presented additional unique demands. At Special Counsel, we stand ready to respond and look forward to a new era of solutions crafted through the blend of technology and talented professionals in the field.