Solutions available in today’s eDiscovery market offers great power. Service providers and law firms have access to electronic discovery software with built-in capabilities that previously had to be custom-built or simply were not available. In spite of these advances, many firms and providers lag behind, continuing to rely on outdated eDiscovery software.
As a service provider hoping for a better market share, or as a law firm pursuing market growth, how do you tell whether you are an electronic discovery leader or a laggard?
eDiscovery Market Trend #1: Ease of Use
Is your eDiscovery solution easy to use? An electronic discovery tool you and your clients find hard to use is a tool less likely to be used. If you find your current eDiscovery solution difficult to use, it is time to look around.
eDiscovery solutions should be accessible from desktop and laptop computers, tablets, and mobile phones. They should work with all major operating systems; at a minimum, they should work with Windows 10 and OS 10 on those computers and iOS and Android on mobile devices. Electronic discovery solutions should be available via a browser and work with recent versions of all major browsers, such as Chrome, Edge, and Safari.
The user interface of the eDiscovery solution you use should have a clean, modern, and efficient design. That look should start at the login screen and continue throughout the platform.
At every screen, the interface should be designed to allow users to focus on their tasks without distraction. Actions should be intuitively placed so that users can find and execute them easily.
For users who will spend extended periods of time in the eDiscovery software’s interface, options such as a dark mode should be offered to help reduce eye strain.
Look for navigational tools such as flyout menus the simplify moving from one section of a platform to another. A flyout menu is one that remains tucked away to the side until you need it. When selected, it flies in from the side and displays choices.
eDiscovery Market Trend #2: Platforms
Is your “eDiscovery solution” just a point solution or a real platform? One of the first questions to ask is, “Am I using a series of point eDiscovery solutions or do I have an actual eDiscovery platform in place?” For these purposes, think of a point solution as a software program that addresses a specific, often narrow, need. It could be a tool that allows you to generate a PDF image from native files, or one that lets you collect the contents of a hard drive. Think of a platform as broader, an integrated set of tools that allows a user, going through a single interface, to perform a wide range of electronic discovery functions such as helping to identify stored information that then gets preserved and/or collected, processing a subset of the collected ESI, hosting the processed ESI, supporting review of that data, delivering tools to analyze that content, and enabling production of some portion of the data to others.
Even the most comprehensive electronic discovery platform will not address every aspect of what you need to do with ESI across the full life of a lawsuit or investigation. To the extent practical, you want to find a platform that will meet the bulk of you needs and allow for integration with point solutions to fill gaps.
eDiscovery Market Trend #3: AI
How does your eDiscovery solution use AI? Almost every eDiscovery solution uses artificial intelligence is in some fashion. What forms of AI are used by various solutions differs greatly, as does what the systems do with AI – and those differences matter.
Look for an electronic discovery platform that incorporates AI in ways that create a frictionless experience for users. AI capabilities should be seamlessly integrated into the eDiscovery solution. They should fit where users will employ them in a natural workflow, so AI features appear where one would expect them in existing workflows rather than as segregated tools. The solution should offer AI in ways that make its use intuitive for users of all skill levels, displaying only options they will understand and may want to change on a regular basis. At the same time, solutions need to cater to power users, offering them options and features that let them dig deep into the data. Any AI built into eDiscovery software must be defensible, of course. Most importantly, AI must be there to meet users’ needs in ways that solve real-world problems; AI implemented just to check a box is worse than no AI at all.
Where to find AI in eDiscovery solutions. AI potentially can be employed at every stage and many sub-stages of the eDiscovery process, from initial attempts at identifying potentially interesting ESI all the way through its production and use at depositions, trials, and the like.
Today, AI typically shows up processing, review, and analysis. In processing, unsupervised machine learning capabilities are used to create email threads. For review and analysis, unsupervised machine learning is used to generate concept clusters. At those stages, supervised machine learning is used to help find more documents similar to ones designed by reviewers as important; variations of this process often go by names such as predictive coding, technology assisted review (TAR), and continuous active learning (CAL).
What does their AI do for you? Whether an eDiscovery solution uses AI in some fashion is far less important than what the platform uses AI to accomplish. Here are a few things to look for:
Does the solution’s AI help you mine data?
Does it help you prioritize data?
Does it improve your ability to test patterns you suspect are in the data?
Can you use it to uncover patterns you might not have suspected were there?
Can you turn to it to identify critical insights for you?
How many modern features does your solution offer?
eDiscovery Market Trend #4: Audio & Video
Although audio and video files are as old as eDiscovery, making effective use of them in litigation and investigations continues to be challenging.
Look for a solution that can work with audio and video files. The solution should offer a way to make the audio components of these files searchable, such as by programmatically transcribing audio content. The solution should let you transcribe files individually and in bulk.
The solution should provide options for working with transcribed text from video files. You should be able to view and search the transcribed text. If the text come from a file with both audio and video, It helps to be able to use closed captioning where the text appears alongside the video. For this, you want the text to scroll automatically in sync with the video, and for the text to be highlighted as the audio is being heard., auto-scrolling text. You also will want to the system set up so that when you click on text, the corresponding video segment is displayed.
eDiscovery Market Trend #5: Foreign Languages
It has become commonplace for collections of ESI to contain content in multiple languages. Do you have a solution that detects the language of documents? Can it prioritize or organize documents for review based on the languages present in the documents? Does it have translation capabilities built it to the platform? Can it displace translated content alongside the original materials?
In addition, can the language used in the platform’s interface be changed, so that a Spanish-speaking review can see menus displayed in Spanish, a Russian speaker the same, and so on?
eDiscovery Market Trend #6: Wordlists
Wordlists long have been a powerful feature of eDiscovery solutions, but not all wordlists work alike.
A wordlist is a collection of words derived from source materials such as a collection of electronic files. eDiscovery wordlists typically show both individual words and for each of those words a count of how many times that work appears in a collection of documents. The solutions often offer wordlists that can be searched, sorted, and filtered.
Look for solutions that present wordlists in ways that make them easier to use. Color coding can be useful, such as when words that match on wildcard terms are highlighted in an expected color or so that words showing on multiple lists are highlighted in a different color.
In some solutions, wordlists can be hard to find. Look for platforms that allow users to take such actions as enabling and disabling wordlists right from the review pane. Some solutions display arrows or similar cues that users can click on to move to next and previous instances of a word from a wordlist; it helps users if they also can turn those arrows on and off.
eDiscovery Market Trend #7: Single Sign-on
If an eDiscovery platform consists of more than one product, look to see whether it uses single sign-on (SSO). With SSO, users need only log in to the platform with a single ID and password. Once the users are securely authenticated, they can move from one application or website to another without needing to sign in yet again.
eDiscovery Market Trend #8: Production Speed
How well does your solution facilitate production? At some point during most electronic discovery projects, you will need to generate a production set, a collection of documents and related information that you package up and sent to someone else. Look for systems that help make the production functions easier to use, more reliable, quicker, and harder for a user to get wrong.
For productions, speed matters. Look for solutions whose creators keep working to increase export speeds, especially for large productions. Production speeds can be improved by allowing each volume of a production export to be stored in its own zip file and by letting users generate production zips in parallel. It helps to be able to choose between downloading each volume separately or all at once. It also helps to have a function that allows production volumes to be downloaded in parallel.
eDiscovery Market Trend #9: Deployment Flexibility
Where can your solution run? You should be able to choose where you deploy the eDiscovery platform you use. There are four options: cloud, on-premise, hybrid, and mobile. You ought to be able to use whichever combination of deployment options fits your needs.
Cloud Deployment – With a cloud deployment, your eDiscovery software operates in a cloud and the data handled by that software resides in that cloud.
The term “cloud” refers to a network of server computers, perhaps spread out geographically, that operate together as one system, delivering capabilities over the Internet. Cloud servers can perform various functions such as running application software, managing and storing data, and delivering content. Cloud deployments typically offer the ability to expand and contract resources as needed.
Advantages typically offered by cloud deployments include lower operating costs; a broad geographical reach; scalable performance; robust security; quickly provisioned computing resources that allow for improved operating speeds; far fewer maintenance requirements; and greater reliability.
Major cloud providers include Amazon Web Services (AWS) and Microsoft Azure.
On-Premise Deployment – With an on-premise deployment, your eDiscovery software is installed on servers you maintain behind your firewall.
The advantage of this approach is that you have far greater control over the infrastructure you use. The software runs on servers you bought. The servers are installed in facilities you control. The facilities are in physical spaces access to which you control.
The disadvantages are the flip side of the same coin. You need to spec out, purchase, and maintain servers and other hardware. You need to install updates of the eDiscovery software you use as well as updates of all other software needed to make the system run properly. You need to implement and update security measures, including physical security.
Hybrid Deployment – A hybrid environment is a mix of cloud and on-premise deployments. The cloud infrastructure can be tapped into for benefits such as scalability. The on-premise components might mean integration of on-side customer data centers where, for a variety of reasons, move those structures and that content to the cloud is not a viable option.
Mobile Deployment – Eventually, a situation will arise where you need to deploy a mobile version of the platform. You might, for example, need to go to a geographical location where you do not have access to your cloud implementation or existing on-premise locations and where creating that access is not a viable option. Or you might be in a situation where you are dealing with such highly sensitive data that you need an air-gapped deployment, one that is physically isolated from other computer networks.
Geography can be a key consideration when choosing between these four options. If you and your data all are in the United States, where ESI is stored and where it is worked upon does not matter so much. If data resides outside the United States, then privacy considerations can come into play. At that point, you need to become familiar with the numerous data privacy rules and regulations that may be in place in Canada and elsewhere in North America, throughout Europe, in India, Japan, and other parts of Asia, in Brazil and elsewhere in Latin America, and in Africa.
eDiscovery Market Trend #10: Price Transparency
Is Pricing Simple and Transparent? Understanding and comparing the pricing and costs of eDiscovery capabilities can be a challenging and frustration task.
Scrutinize the information available to you about how much you will be asked to pay to make use of the eDiscovery solutions you are considering using. Remember to get updated pricing information for any products you currently use and include that information in your analysis.
Get written price lists and quotes, not just ones delivered verbally. Make sure you find out the pricing schema. If you are going to be charged per GB of data, for example, find out who will measure the GBs and how. You might be charged on the front end for GBs measured as the data is loaded into a tool, as it is measured after any compressed data has been decompressed, or after certain pre-designated types of files have been removed. You might be changed on the back end instead or as well, with the volume of data measured by how many GBs of data you produce out of the system. A fixed-fee pricing structure might be used, or one that is based on hours of time incurred. Sometimes additional license fees need to be paid. With some platforms, monthly recurring fees are charged, sometimes for data being hosting, sometimes a lesser amount for data stored offline, and sometimes for each user of the system.
With the major changes that have been taking place in the eDiscovery market recently, now is an especially good time to take a look a where you are today with the eDiscovery solutions to use, take a look at the other options available to you, and decide whether now is a good time to explore a move.