16 Trends Shaping The Future Of eDiscovery—Part 2

How To Prepare For The Uncertainties Ahead

The future is a mystery to all of us. Anyone who tells you otherwise probably has their own agenda, one that may or may not favor you. That being said, I’m not convinced that we need to wait for the future to unfold and then try to pivot in real time. That can be very painful. I prefer to anticipate a range of possible outcomes and then to make strategic bets about what is most likely to occur. In my first article on this topic, I outlined eight trends that are very likely to happen in the future. In this thought piece,?I want to explore eight trends that may or may not happen in the future.

Why do you need to consider these trends? Disruption happens when people are caught off-guard. We all tend to fall into comfortable habits and day-to-day patterns. It’s easy to believe they will go on forever, as if an average day today will pretty much look like an average day five years from now. But one need only look at the last 10 years in the eDiscovery industry to see how that’s a fallacy. I don’t want you to get caught off-guard. I want to give you every opportunity to pivot before it becomes incredibly hard to do so. Here are my perspectives on trends you should be tracking so you stay ahead of the curve.

Who Needs To Watch These Trends?

Any organization that has made a significant investment in eDiscovery, or who relies on eDiscovery to achieve their business goals, can benefit from these ideas. By my estimation, this would include:

• Law firms
• eDiscovery service providers
• Consultancies with a core competency or practice area in eDiscovery and investigations
• Corporations, government agencies and other stakeholders who prefer to manage eDiscovery in-house

It’s one thing for these organizations to be nimble and responsive,?to adapt to disruption?as it is unfolding. It is quite a different thing?to anticipate disruption, to position for it and to lean into it before it changes the landscape. That is ultimately my purpose in writing this thought piece.

My Approach To Analyzing Future Trends

As I noted in my first thought piece on this topic, I’ve found Daniel Burrus’ methodology to be quite helpful in thinking about the future. Mr. Burrus postulates that the most effective way to think about the future is to divide it into hard trends and soft trends. Hard trends are those things that almost certainly are going to happen. That was the focus of?my first article.

Soft trends, on the other hand, are those things that may or may not happen in the future. They may have a long-term impact or be short-lived. Sometimes the seeds of these trends are already evident in the marketplace. But other times, they’re not at all evident. There is a?50-50 chance?that soft trends will materialize and become reality.

If there’s only a 50-50 chance that a soft trend will materialize and impact this industry, why should you take any time out of your busy day to research and think about it? Because?it’s the soft trends that tend to be the most disruptive. Let me give you an example.

When Apple introduced the iPhone, it probably wasn’t their intention for that device to become the most popular camera in the world. Nikon, Canon and Polaroid probably vied for that position. And yet, slowly but surely, smart phone cameras have taken over the photo world. They’ve become the camera most people reach for at birthday parties, family reunions and graduations, among other major life moments. That’s how disruption often works. A product was designed to do something specific, and it turns out it’s really good at doing others things too.

This is why?I recommend that you track the soft trends very carefully. They may not require immediate action, but they do require careful monitoring. I recommend that you find information sources that will help you track the trends and keep up with them at least monthly. This way, you can anticipate and be ready to pivot before the trends upend your operations.

Here are the eight soft trends me and my colleagues have identified:

1. Structured data may become more important than unstructured data.
2. A major global software development company may enter this market.
3. SaaS and Cloud could overtake DIY (on-prem) or vendor-based approaches.
4. Truly innovative features in eDiscovery apps may disrupt the industry.
5. Service providers will likely face increased pressure to offer comprehensive services.
6. Net-new client entrants will likely be cloud-native or cloud-friendly.
7. Traditional M&A activity may decrease as R&D investments increase.
8. A new generation of legal professionals may very well change the game.

Soft Trend 1: Structured Data May Become More Important Than Unstructured Data

In the past, reviews often began when a set of hard drives were transferred to an eDiscovery team. Most of the data on those drives was unstructured. There were all sorts of files on the drives, but most of them were not related to each other, especially by way of a relational database management system (RDBMS). Word documents stood alone from PowerPoint documents which stood alone from videos, social media posts, texts and other types of files.

But over the last few years,?structured data has become a prime focus point for eDiscovery efforts. Structured data is usually quantitative in nature and often includes names, addresses, credit card numbers, financial information and other types of data that can easily be stored in an RDBMS.

For example, if you remember back to when cell phones became prevalent in investigations, you’ll likely remember how difficult it was to cull data from these devices. Now this has become much easier because tools have been developed that allow for relatively easy extraction of data from structured applications mobile devices use. This is possible because there was financial incentive for app developers to build these tools.?But what happens when an application is so niche, so new or so small that there is little incentive for developers to build a tool??What if the data you need to review is embedded within that type of structured database? How will you handle this situation?

Most analysts seem to indicate that unstructured data constitutes about 80% of data that exists within an enterprise today. Unstructured data also seems to be growing at a clip that outpaces structured data. So how could I possibly say that structured data may become more important than unstructured data? That seems counter-intuitive—right?

Here’s why I make this point. It’s not that there may be more data, more actual files to review, in structured data than unstructured. It’s that?the data in structured systems is probably some of the most important data that exists today. Think about that a moment. Structured data is often financial or personally identifiable, like social security numbers. This data is of vital importance to most organizations, which makes any investigation into that data of vital importance to them also.

But there are two other reasons I believe structured data will grow in importance: the complexity associated with accessing and reconstituting structured data and the proliferation of cloud systems.

Here is how I see this playing out in the real world, as I’ve lived it (rather painfully I might add). What happens when a loyal client brings you a matter that requires you to review structured data??Will you have the skillsets to migrate that data to your review platform and reconstitute it in a way that makes it easily searchable for your team to do their job? Can you do it quickly and cost-effectively enough to retain that client and keep competitors at bay?

This is probably more challenging than most people realize. I learned it the hard way a few years ago. I was asked by an important client to prepare data from their CRM system for review on an eDiscovery platform. I spent countless hours analyzing the data tables and APIs from the CRM to discover a solution. Migrating the data wasn’t a significant problem. But?reconstituting the data on the review platform in such a way that it was fully searchable and that made sense to reviewers—that was a huge challenge and it added to our timelines and expense.

So here is what I would encourage you to think about. Review of structured data may not be your bread and butter type of matter today.?But if you don’t have a solution that allows you to quickly and cost-effectively respond to a client request for reviewing structured data, you probably have put yourself at a competitive disadvantage. What’s more, I believe these types of requests will only grow in frequency as more organizations adopt cloud-based solutions—most of which are based on structured data models. It is also entirely possible that the ability to handle structured data reviews could become the new litmus test—the new barrier to entry—for everyone in this game.

My recommendations:

• Run a structured data pilot program internally. This will allow you to assess your current capabilities and make a plan for how to handle these requests in the future.?Don’t wait until you get a request to build your plan.
• Evaluate the skillsets and problem-solving capabilities of your team. Do you have the technical skills in-house today? If not, what will you do?
• Consider a partnership or strategic alliance with an organization that specializes in this area. This is a highly specialized skillset that is not easy to find.

Soft Trend 2: A Major Global Software Development Company May Enter This Market

eDiscovery, as an industry, has flown under the radar for decades now. The development of the EDRM was one of the most significant accomplishments for the industry as a whole. It defined a structured set of best practices to guide our efforts. The EDRM was a game-changer because it brought order to chaos. Instead of people making up their practices on the fly, the EDRM provided a soup-to-nuts roadmap.

But since the advent of the EDRM,?there has not been a recognized industry-wide event that has ordered the behavior, thought processes and practices of professionals in this space. That could all change if a major software company entered this market. Given the financial incentives for software developers that are now evident in eDiscovery, we think it is entirely possible this could happen.

What are those financial incentives? When you look at top-of-market companies today, most of them are leveraging data to increase their bottom line. They’re doing this through a combination of new products, ad-driven revenues and intelligence products they offer the market. What data sources can make their activities even more valuable? The data sets that exist within review platforms. Owning and managing this data could be a significant new revenue stream for top-tier companies.

If we use other industries as a barometer for what this looks like, here is a pattern to watch out for:

• A major software company privately decides to make a push in a new industry.
• They begin by acquiring a certain number of players in the space already.
• They put together a skunk-works team of innovators and ask them to focus on technology that could radically improve today’s workflows. They are looking for game-changing ideas.
• That team develops software that solves major problems, is usually cheaper than current options and is highly reliable.
• They roll out the software with their deep marketing pockets backing their efforts. They leverage the brand positioning of the software company to establish credibility.
• Within a short period of time, their software has transformed the industry.

In case you were wondering what impact a major software company might have on eDiscovery, let me postulate a few things:

• eDiscovery software license fees could go down even as features are improved. This has often been the case when major software companies enter an industry. They usually seek to be disruptive to existing business models by being cheaper, faster and better.
• Workflows could change dramatically, probably for the better. A big goal for most software companies is to reduce the amount of time and effort it takes to complete tasks.
• Buying that software could lock you in to their roadmap and ecosystem. This is the question that most buyers will have to answer: how much control over the future and I willing to give up in exchange for lower fees and better features?

My recommendations:

• Most major software companies are publicly traded, making it relatively easy to track them. If you see them engaging in the type of M&A activity I described above, it’s likely that a major announcement may be forthcoming.
• I recommend that you follow, at a minimum, Microsoft, Amazon, SAP, IBM, Oracle and Google.

KEY TAKE AWAY

The data in structured systems is probably some of the most important data in existence today. If you don’t have a strategy to quickly and efficiently review it, you’re probably at a competitive disadvantage.

Soft Trend 3: SaaS And Cloud Could Overtake DIY (On-Prem) Or Vendor-Based Approaches

The great promise of the SaaS and cloud industry is “no software required.” You buy a license, put your data in the system and just start using it: simple, clean, fast. Maintaining the hardware and software of that system is the problem of the developer and is codified in Service Level Agreements guaranteeing uptime and access. Security is a shared responsibility, but generally it’s controlled by way of identity and access management.

This description probably seems like Nirvana for many organizations today that are managing eDiscovery in-house and on-premise. Many of the clients we serve at George Jon have?carefully considered the benefits of cloud, especially when compared to the headaches of managing the five big S’s: software, servers, storage, SQL and security. But the mass migration to the cloud that everyone seemed to predict, just a few years ago, has not turned out to be reality. There are several reasons for this:

• A lot of clients don’t want their private data in any form of a cloud. They perceive it to be too much risk and exposure.
• Cloud-based systems simply are not as fast as they need to be, in their current incarnation. Reviewers need speed, access and lightning fast IO. Even a small matter with just a few gigabytes of data probably runs much faster on in-house systems than in the cloud. If matters include terabytes of data, painfully slow response times are likely the norm.
• For all the simplicity cloud systems promise, there’s not a lot of flexibility, at least not easily. For instance, if you want your software to sit in one location but your data, storage and SQL to exist in another location, (a common consideration for those seeking to address security concerns) good luck with that.
• Cloud and SaaS may not, on balance, actually be cheaper than on-premise, or at least not so much cheaper that it’s worth the risks. We’ve conducted these analyses for several clients and the results are often surprising.

Even with all of these challenges, SaaS and cloud still hold out a lot of promise for eDiscovery. At George Jon we have been perfecting our approach to the cloud by way of our?Kit As A Service?(KaaS) offering. There is a lot of interest in this type of solution, even though we just began marketing it recently. When I look into my crystal ball, I predict that within the next few years about half of our clients will be managing eDiscovery with some form of cloud integration.

My recommendations:

• Watch for security developments in public cloud systems. As this technology advances, my sense is that security concerns from clients will diminish.
• Make sure you are intimately familiar with the building blocks of your eDiscovery environment (the five big S’s I noted above). My sense is that we will continue to see advancements in the federation (uncoupling) of these basic building blocks. This could address both speed and security concerns.

Soft Trend 4: Truly Innovative Features In eDiscovery Apps May Disrupt The Industry

I want to begin this topic by describing the differences between micro-innovations and macro-innovations. Micro-innovations are about incremental improvements to existing technologies and approaches to using that technology. This is about the slow, gradual but consistent roll-out of upgraded features in software applications.

Macro-innovations, on the other hand, are about a massive leap forward. These are what Thomas Kuhn describes as paradigm shifts in his seminal work,?The Structure of Scientific Revolutions. Paradigms are conceptual worldviews that consist of formal theories, classic experiments and trusted methods.?When a paradigm shift occurs, established theories, trusted experiments and recognized methods all get disrupted. A new and better way gets adopted by pretty much everyone.

In this industry, we have not witnessed macro-innovations in a long time now. The underlying workflows and processes really have not changed much in the last several years.?I believe the time is ripe for macro-innovations. I say this for these reasons:

• eDiscovery, as an industry, has matured significantly over the last 10 years. But the industry itself is still quite young. History shows us that when a technology evolves to a level of stability, then it can be applied in break-through ways that were not originally conceived of before. For example, the internal combustion engine had to be perfected before it could be effectively applied to trains, cars and airplanes. Those innovations revolutionized the world.
• There are more matters in review, more data and more outcomes to be tracked than ever before. This is creating a treasure trove of information that can be mined. This information could yield predictive indicators about future litigation events. If you can identify the factors that led up to an investigation,?you just might be able to predict and prevent future litigation events.
• Machine learning and AI are in their infancy right now. I believe it is entirely possible that they could be applied to this industry predictively, not just reflexively. This is purely speculation on my part, but let me give you an example. AI makes it possible to predict risks based on scenarios. If you have employees showing certain behaviors or patterns, and an analysis of eDiscovery matters shows that those same behaviors have led to lawsuits in the past,?have you unlocked the ability to prevent future litigation events??If so, does this give rise to a new type of service provider and a new business model? Could litigation preventers, not litigation navigators, be the wave of the future?

My recommendations:

• It seems entirely plausible to me that purveyors of litigation trend data could begin to sell licenses to access their trends. If this happens, you’ll want to know about it right away. Keep an eye out for this type of emerging business model.
• Any new or interesting use of AI within eDiscovery is something I recommend that you not ignore. Even if you cannot see a short-term use for the technology, I still encourage you to learn as much as you can about it.

Soft Trend 5: Service Providers Will Likely Face Increased Pressure To Offer Comprehensive Services

Service providers in eDiscovery fulfill a very important role. They are subject matter experts that can handle reviews often faster and more cost-effectively than alternative options. That being said, I see a challenging road ahead for service providers of a certain ilk.?Those who earn substantial revenues by hosting client data and charging a per-gig storage fee are likely to experience real challenges. I say this for a few reasons:

• More and more, the trend we see in eDiscovery is toward?having one throat to choke. Clients seem to want their data in one location and they want to know who controls it, who has access to it and how it’s being managed. Service providers are often intermediaries, where they work closely with a law firm to navigate matters. This means that sometimes, their value is not particularly visible to clients even though their invoices are.
• Data storage is becoming even more of a commodity business. Services from AWS, Azure and Google Cloud have made it seem like data storage should be cheap, scalable and highly available. While we all know that’s not the reality in eDiscovery, the perception remains. If a service provider’s primary value is hosting data, they can probably expect continued downward pressure on fees.
• Clients will eventually realize how much money they are paying for data storage that may be unnecessary. An audit of stored data could reveal that they are paying to host data that hasn’t been accessed in years and probably could be decommissioned.

Yet, this does not spell the end of the service provider opportunity, in my opinion. In fact, I have a sense that service providers who are willing to leverage their strengths will thrive through the coming period. One of the greatest assets of a service provider is access to client data. This puts them in a position to add value to clients by analyzing their data and presenting fresh insights that could really help them. This requires a change in mindset and likely a new set of tools to perform the analyses. But forward-looking service providers could really benefit from this.

What might this look like in practical terms? The EDRM can be a guide to us here. Most service providers today offer to Preserve, Collect, Process, Review and Analyze client data. But to the very left of most EDRM graphics there exists this overarching category called Information Governance. Very few of the service providers we’ve worked with to date offer consulting services for Information Governance. This represents a cornucopia of golden opportunities to add more value to clients, differentiate from competitors and adopt new revenue streams.

My recommendations:

• If your primary value-add today is hosting data, begin to look for ways to add more comprehensive services that differentiate your brand. Consider moving left on the EDRM.
• Clients and law firms often need specialized consulting for certain types of matters. If you have this expertise in-house, tout it so you have something that makes you stand out.
• Consider running a market research exercise to understand unmet needs in your primary client base today. Then ask yourself how you are best positioned to fulfill those needs.

Soft Trend 6: Net-New Client Entrants Will Likely Be Cloud-Native Or Cloud-Friendly

In the section above about structured versus unstructured data, I stated that many clients will not want their data in the cloud because of security concerns. But there is a growing exception to this that I believe will create a real market opportunity for forward-leaning eDiscovery companies.

Over the last several years, cloud-based companies have proliferated. Depending on which analysts you read, there are around 15,000 Software as a Service (SaaS) companies in the US (not including platform as a service or infrastructure as a service – both of which are cloud-based business models). Globally there are as many as 25,000 SaaS companies. What’s more, growth in these business models seems to have a very bright future.

These businesses are completely comfortable with their data being in the cloud because that’s how they run their organizations every day. This type of client will expect any service provider to have a similar affinity for the cloud. They will expect the cloud to be a part of their everyday operations.

One of the most practical ways I can see this playing out has to do with data transfer. Traditional companies will probably expect you to ask for hard drives at the onset of a review. Cloud-based companies will probably expect you to ask about their preferred (and fully secure) file transfer protocol tool of choice.

My recommendations:

• If you see this as a real market opportunity for your business but you have not yet perfected your approach to the cloud, start doing research now.
• Ask yourself how an approach to leveraging the cloud could transform certain workflows you have in place today. Begin to identify how you’ll use the cloud in these areas.
• Begin conducting research about the intersection of cloud-based companies and litigation or investigation events. Make a short list of companies who will need your services and proactively reach out to them.

Soft Trend 7: Traditional M&A Activity May Decrease As R&D Investments Increase

In many industries, an M&A playbook often resembles this pattern: smaller companies with innovative technologies get bought and rolled up into larger companies which, in turn, get sold to even larger companies. This is how break-through technologies end up being commercialized and matured by large businesses. But there is a logical end-state to this activity. When most of the great new technology has been acquired and rolled up to larger companies, then what? Where do growth opportunities come from?

For most organizations,?the only option left to them is to spend on R&D activity to create new break-throughs. This is exactly what I see for the eDiscovery industry over the next several years. As I stated above, I predict a major software company will enter this industry and likely acquire a number of smaller players today. But soon thereafter, R&D spend will likely increase to ensure the software company has a pipeline of new products to present.

My recommendations:

• Watch for the M&A playbook pattern in the eDiscovery industry.

Soft Trend 8: A New Generation Of Legal Professionals May Very Well Change The Game

Many of today’s legal professionals did not get formal training in school about eDiscovery. This means that eDiscovery was probably something they learned on the job and might be only nominally familiar with. But a new generation of legal professionals who are graduating now are much more familiar with eDiscovery. They probably took courses in the topic and might even have been exposed to laboratory environments where they could see eDiscovery in action. I think this has several implications for the future:

• Many new legal professionals will be able to handle eDiscovery matters on their own or with minimal oversight from partners.
• This new generation will understand the necessity of spending on eDiscovery infrastructure and making it highly reliable and available.?They will have very limited tolerance for outages that can be foreseen and prevented.
• This will eventually lead to a much more sophisticated eDiscovery buyer who knows which tasks are the most complex and valuable. They will be rather astute in reading proposals and spotting bloat.

My recommendations:

• Consider hiring new graduate legal professionals with an eye toward their eDiscovery sensibilities. Ask them about classes they took in this area.
• Law firms should consider the development of a task force made up of professionals who want to continuously upgrade their eDiscovery capabilities. Consider new graduates for this task force because they may have some great new ideas to propel you forward.

Where To Go From Here

Over the course of these two thought pieces, I’ve outlined 16 trends that I believe will impact the eDiscovery industry. My?first piece?outlined 8 hard trends. This piece outlines 8 soft trends. But my question for you is this. What will you do with these ideas? How will you leverage them to ensure you stay on the cutting edge? How will you prevent your eDiscovery operations from being upended? If you’re not sure where to go from here, I’d like to recommend that you reach out to me for a conversation. If we put our heads together, we just might come up with a plan that could be pretty amazing.

About The Author

Jordan McQuown

CHIEF TECHNOLOGY OFFICER (CTO), GEORGE JON

Jordan McQuown is an authority in information technology, cyber security, electronic discovery, and digital forensics. He has written Thought Leadership articles for the American Bar Association’s Cybersecurity Handbook and Information Security Magazine, and he is a regular speaker as a subject matter expert on the eDiscovery security, application and legal conference circuits.