Peer to Peer Magazine

June 2011

The quarterly publication of the International Legal Technology Association

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Page 97 of 143

Discovery 2020 acquisitions, the disappearance of providers with inefficient workflow and software, and the rapid obsolescence of entities with highly leveraged operating platforms. The technologies and methodologies used to store, retrieve, process, classify, search and produce data will need to dramatically improve in their ability to identify the most relevant information in a significantly more cost-effective and defensible manner. Frankly, no one will have the time or money for any less of a result. Besides the array of existing data creation and social media modalities (e.g., texting, Facebook, Twitter, FourSquare, Tumblr, LinkedIn, etc.) new formats continue to be introduced almost on a monthly schedule. The amount of new data creation is staggering — and it is likely that most is discoverable. To further complicate the story, data privacy and security issues have spurred the introduction of new laws, regulations and possible liability for the failure to properly protect specific categories of information. These mandates apply to the processing, storage and transfer of data. The potential privacy and security scenarios for the clarion call to store data in the cloud are too numerous for this article. And as if all of this is not enough to think about, these requirements are not uniform and vary by state and by nation. Not to be overlooked, the judiciary is rapidly becoming better educated about ESI. Sanctions are now being levied, not just for preservation and collection failures, but for workflow and data processing errors as well. Attorneys should be on notice that the bar of competence has been raised. Professional responsibilities have recently been expanded to include “failure to supervise.” Simply delegating discovery responsibilities to a litigation support person or an outside vendor will not diminish the attorney’s liability for substandard results. Gaining Access to Everything with ECA So, where do we go from here? The first challenge in any e-discovery matter is to identify and obtain access to all of the potential sources of relevant and responsive information. New technologies for the creation and exchange of information in both formal and informal ways have made this an increasingly difficult task. New case law is beginning to address social media issues and the implications that this medium holds for discovery. We are being challenged to efficiently and accurately aggregate all potentially discoverable information so that it can consistently be processed and searched. These tasks will be some of the key challenges over the near future. In line with the theme of accessing information earlier in the discovery process, enthusiasm for early case assessment (ECA) tools has gained significant traction in the past two years. The advent of ever-more-powerful hardware, the pervasive availability of high-speed internet access, as well as improvements in the tools used for categorizing and reviewing data have created demand for new products that are designed to enhance review capabilities extremely early in a case. Although there is no clear definition of what ECA actually means, an effective and defensible platform should Secure Individual Folders Dynamic Walls Privacy Exclusionary Walls Conf identiality Prosperoware provides solutions for productivity and governance to law firms including: • On-Demand Folders • Universal client for email & document management for the web • Matter provisioning across multiple systems • Improved administration for iManage Peer to Peer the quarterly magazine of ILTA 99

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