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Courtney Writes 2004 Predictions: The Year of Increased Expectations As 2003 draws to a close, I've decided to review all the reader questions received during the year to highlight the most significant electronic discovery issues of 2003, and to identify trends emerging for 2004. If 2003 was the "Year of Electronic Discovery Education," 2004 is shaping up to be the "Year of Increased Expectations." Many legal professionals will remember 2003 as a year marked by electronic discovery education. Attorneys, paralegals, and litigation support managers embarked on a steep learning curve as they watched the case law develop at a steady pace while trying to make sense of the various product and service offerings designed to make electronic discovery easier. In this issue, we will identify important trends to keep in mind for next year and discuss how those trends affect your discovery practices. Buyer Beware The most prevalent theme in my inbox lately is the frustration people feel in trying to sort out relevant claims related to electronic discovery service offerings. As one attorney recently griped, "So many firms are claiming to be 'electronic discovery' service providers. Separating the real e-discovery experts from printing vendors who only can upload a single .pst file to a Concordance database has proven to be very time consuming." As more law firms gain first-hand experience with electronic discovery, feedback and anecdotal evidence will continue to spread about the good, the bad, and the ugly. Attorneys and legal support professionals are quickly learning two key lessons that will become more apparent in 2004: First, while price is always an important component of selecting an electronic discovery service provider, a botched discovery process caused by an inexperienced or unqualified service provider costs a lot more and is often accompanied by considerable pain and suffering. Second, all service providers are not created equal. Anyone who has walked the aisles of a legal technology event such as LegalTech or the ABA Tech Show has seen dozens of companies advertising "electronic discovery" services. These noisy advertising claims ought to be accompanied with a "Buyer Beware" disclaimer, however, as the claims are not always backed by adequate legal and technology experience in the field. My prediction for 2004: There will be significant growth in the number of increasingly sophisticated, knowledgeable purchasers of electronic discovery services who will demand reliable technology, adherence to deadlines, and quality client service. Electronic discovery impostors will fall by the wayside and a select few experienced, reputable service providers will emerge at the end of 2004 as the clear leaders in this field. It's Not Just the Mega-Cases Traditionally, attorneys and litigation support professionals viewed electronic discovery technology as relevant only to very large, email-intensive cases. While the number of large cases utilizing electronic discovery services continues to grow at a rapid pace, the demand for electronic discovery services for small and medium-sized cases (typically less than 350,000 pages to review) is growing at an even faster rate. Law firms and their clients once assumed that the cost-benefit analysis for choosing to use an electronic discovery service provider made sense only for the so-called mega-cases. As the technology has matured, the experience level of users has changed dramatically as well. Attorneys who now have experience with electronic discovery technology are starting to put that experience to work in other cases and discovering that the time and cost savings of electronic discovery are scalable, regardless of case size. My prediction for 2004: There will be a sharp increase in the number of legal professionals using electronic discovery in small and medium-sized cases. With an average of more than 66 percent improvement in user productivity and courts demanding that litigants find an efficient way to handle electronic discovery, more cases will move from the old, paper-based methods of discovery to take advantage of the benefits that electronic discovery has to offer. It's About Productivity The feedback I received this year indicates that the only features users truly care about when it comes to an online review application are those that make the review more productive and make the application easier to use. As a litigation support manager asked rhetorically in a recent email, "Why do I need instant messaging and other distracting features in a discovery review application when all the attorneys want to do is review and mark the documents as efficiently as possible?" In the coming year, service providers will focus on technology that speeds the review process by enabling users to move quickly and efficiently through electronic documents. The effect on productivity can be significant: the extra seconds it takes for slower applications to move from document to document can add up to hundreds of thousands of dollars in wasted time for even a medium- sized case. As one associate lamented recently: "All we want is a way to avoid the mindnumbing experience of staring at the screen while we wait for the next document to come up." It's not just speed either. Confusing features, cluttered screens, and a general lack of usability are typical complaints of reviewers who have sampled various electronic discovery applications. Electronic discovery service providers are learning that their applications have to respect the workflow and thought processes involved in document review. To quote a recent email, "The most successful experiences I have had with online review have been with those that fit in with the standard review process, provide clear summaries of the case status, and are easy to use." My prediction for 2004: Feature fetishism will go by the wayside. It's not about more features—it's about making the ones that are most important fast and easy to use. Conclusion We are excited to see what is ahead for electronic discovery. The industry has progressed beyond the early stages of education to a mainstream part of practice. It will continue to evolve into a mission-critical element of most cases. In 2004, the challenge to service providers is to recognize what's really important and to offer products and services that meet the needs of more sophisticated clients. Users, on the other hand, will need to focus on building relationships with those electronic discovery providers that have developed the capacity, service, and products that attorneys, support staff, and clients are looking for. |
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