Post Pandemic Paradigm Shift in Corporate Discovery?

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2020 was a write off for many in the eDiscovery market. Client initiatives held or cancelled outright while the judiciary granted mass continuances as they struggled with the transition to remote hearings. Many of my long-term clients issued work stoppages that lasted more than six months. 2021 arrived carrying all those backlogged matters and projects. After a few quarters scrambling to catch up and make our own adaptations to the new Teams-Zoom normal, I have finally gotten to writing my annual ‘state of discovery’ reports for my retainer clients. Right off the bat I am seeing some dramatic changes in my admittedly small sample set. It is also important to remember that my clients tend to be global corporations with relatively high regulatory or litigation profiles whose leadership has prioritized mature legal and info governance programs. I posit that the Pandemic Pause gave GC’s and CLO’s the opportunity to reset expectations and reassess the cost and value of traditional firm directed discovery.

Unlike the litigation spike following the 2008 Great Recession, we have not yet seen an explosion of federal or state litigation filings. I am seeing an upward trend in average custodian eDiscovery volumes now that most knowledge workers have been forced to migrate to cloud accessible storage like OneDrive, Teams or Google Drive. The sheer volume of raw custodial collections has put pressure on discovery professionals to use an iterative selective collection strategy. That puts the corporate legal team closer to scoping and collection activities than most have been. For too long corporate legal has felt uncomfortable pushing back on overly burdensome or broad discovery requests from opposing or retained counsel. The recent development of proportionality frameworks, guidelines and tools has the potential to empower corporate legal to make defensible cost-risk arguments.

All of this context and my observations are at most early indicators of a mature legal discovery business process that lured me into enterprise software development 15 years ago. I have played many roles along my winding career path; forensic law enforcement, firm litsupport, service provider, corporate legal tech director, enterprise product manager, market analyst and strategic consultant among others. All of those roles sought to make order out of data chaos. I never meshed well with the traditional adversarial-gladiatorial nature of the American legal system that values winning over doing the right thing. Inquiries on topics such as legal operations, corporate owned discovery platforms and long term managed service contracts indicate that some legal executives are serious about taming their eDiscovery wild west show. I will be looking for hard evidence of this trend in the end of year surveys and marketing position papers. I can tell you that some of my clients have drastically cut their eDiscovery related expenses through these kinds of initiatives. Maybe they are just thought leaders ahead of the market. Or maybe the ‘grand enterprise reboot’ last year brings them to the table with a fresh perspective. Have you seen similar or even contradictory signs? I would love to hear about them.

Greg Buckles wants your feedback, questions or project inquiries at [email protected]eDJGroupInc.com. Contact him directly for a free 15 minute ‘Good Karma’ call. He solves problems and creates eDiscovery solutions for enterprise and law firm clients.

Greg’s blog perspectives are personal opinions and should not be interpreted as a professional judgment or advice. Greg is no longer a journalist and all perspectives are based on best public information. Blog content is neither approved nor reviewed by any providers prior to being published. Do you want to share your own perspective? Greg is looking for practical, professional informative perspectives free of marketing fluff, hidden agendas or personal/product bias. Outside blogs will clearly indicate the author, company and any relevant affiliations. 

 

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Written by Greg Buckles

Independent consultant focused on eDiscovery and IG solutions.

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