Data and Time Frames Are Forcing a Shift in eDiscovery Workflows

Data and Time Frames Are Forcing a Shift in eDiscovery Workflows
Written by Doug Austin, Editor of eDiscovery Today

When I was growing up, there was a commercial on TV for Wolf Brand chili where the spokesman – Lee (Pop) Myres always said “Neighbor, how long has it been since you had a big, thick, steaming bowl of Wolf Brand chili? Well, that’s too long!”

Well, “neighbor”, how long has it been since you heard me talk about the challenges of “Big data” and accelerated discovery time frames?  Well, that’s too long!  Actually, I don’t think I’ve talked about it on the IPRO blog before, but it continues to be one of the biggest challenges lawyers face today.

The Enormous Growth of Big Data

You’ve undoubtedly heard the term “Big data” before, but, in case you haven’t, it’s the term used to describe the large volume and variety of data – both structured and unstructured – that overloads a business on a day to day basis.  So, how extensive is the impact of Big Data?  Here are a few fun facts for you to consider that illustrate just how much bigger “Big Data” is getting:

  • Every 2 days we create as much information as we did from the beginning of time until 2003;
  • Data is growing faster than ever before to the point that, in 2020, about 7 megabytes of new information is being created every second for every human being on the planet;
  • Our accumulated digital universe of data will grow from .1 zettabytes in 2005 to around 163 zettabytes, or over 163 trillion gigabytes in 2025;
  • And, if you burned all of the data created in just one day onto DVDs, you could stack them on top of each other and reach the moon – twice.

BTW, a couple of these stats are several years old, before the continued advancement of mobile devices and before Internet of Things, or IoT devices, were really a big part of our lives.

That third bullet point is particularly notable as 2005 was the year that the EDRM Model was born.  While the model is a framework for the phases of discovery irrespective of data volume, it certainly was created at a time when data volumes were much less than they are today or will be five years from now.

Tightening Time Frames for Discovery

While data is growing in the world at an amazing rate, litigation and discovery deadlines aren’t changing. In fact, in some cases, those time frames are even accelerating.

Since the 2006 changes to the Federal Rules of Civil Procedure (FRCP), Rule 26(f) has dictated conducting the meet and confer “at least 21 days before a scheduling conference is held or a scheduling order is due under Rule 16(b)”.  An amendment to Rule 16(b)(2) in 2015 reduced the timeframe for issuance of the scheduling order to the earlier of 90 days after any defendant has been served, or 60 days after any defendant has appeared (from 120 and 90 days, respectively).  That gives you as few as 70 days to be ready for the Rule 26(f) meet and confer, which means you have a lot of work to do in order to understand your data to be ready for that.  And, with the recent pilot programs in the District of Arizona and the Northern District of Illinois (where the deadlines were as few as 100 days to produce all discovery) as well as shortened state court time frames (at least before the pandemic), migrating an increasingly large volume of potentially responsive data to review platforms makes it even more difficult to meet those deadlines.

Technology Moving More to the Data

Historically in eDiscovery, the data has moved to the technology.  Typically, organizations have identified and preserved ESI broadly as potentially responsive (and they certainly should continue to do that), but they have also collected potentially responsive ESI broadly as well – often preserving by collecting – relying on the capabilities of discovery review platforms to help legal teams cull down that broad collection to a much smaller subset of documents to be reviewed for potential production.  With data and time frame constraints, organizations in many cases can no longer collect ESI so broadly as there is simply too much of it to collect and filter and cull downstream to meet budgets and deadlines.  Instead, technology is moving more and more to the original source data for organizations to filter and cull that data in place – moving much less of it forward.

In my thought leader interview with IPRO’s CEO Dean Brown, he spoke about that from an industry perspective, stating: “As an industry, we really don’t have much choice but to deal with the data earlier.  The sizes of the productions and the sizes of the matters that we see our customers dealing with are already at a scale that is ridiculous and untenable. So, when you talk about bringing the technology to the data, we absolutely concur.”

I would call it the “wave of the future”, but it’s already happening today.

For more educational topics from Doug Austin related to eDiscovery, cybersecurity and data privacy, follow, eDiscovery Today! And as part of the continued educational partnership between IPRO and eDiscovery Today, he’ll be here in the IPRO Newsroom next week with more educational content!