A lot has changed in the world since last year’s E-Discovery Day, but it’s not the unusual year of 2020 that is on my mind.  Instead I’m thinking of a different year. Many things have changed, and in some cases remained the same, in a span of time that goes back well beyond the past twelve months.

The year was 2004, a year in which Mark Zuckerberg was busy launching Facebook (or The Facebook) during his time at Harvard and Google’s initial public offering raised more than $1.9 billion.  We all know how those stories played out over the past sixteen years.  Sandwiched between the powerhouse milestones of Facebook and Google a lesser known event was taking place in a cramped cubicle within a corporate legal department – my first e-discovery project.  Every mediocre blog post needs a starting point.  Ours is a year filled with talk of the Zubulake case, proposed changes to the Federal Rules of Civil Procedure (FRCP), and shifting collections of hard copies to electronic stored information (ESI) and the volumes of data that come with it.

Surprisingly, I do remember a good bit about those first projects. But to supplement my own memories, I decided to go on a treasure hunt here at TCDI to see what topics were of interest in the marketplace back in 2004.  I am lucky to work for a company that has been in the Legal Services industry for more than 32 years, so there is a lot of historical data and information to go through. And we completed our “2020 Legal Technology and Practices” survey a few months back, so comparing the e-discovery needs of 2004 with those of today should be interesting. Here is what I found during my trip down memory lane.

The universe keeps expanding, but the number of planets keep shrinking

The e-discovery universe is vast and continues to grow, but the number of players continue to diminish year after year. I’d be lying if I said I remembered speaking with every e-discovery vendor that I met back in 2004, but I’m pretty sure that I had them all accounted for as I jotted down the names from memory. I recall twelve vendors and much to my surprise only one is still in existence under the same name and owners that it had 2004 – TCDI.  All the other vendors have either been acquired, merged, or simply disappeared.  A lot can happen over the course of sixteen years in any industry, but what’s interesting is that within a matter of a few years that list of twelve shrunk by nearly half as many companies looked for growth or stability options during the 2008 Recession.

Enter 2020.  The merger and acquisition trend continues as companies look to gain market share, increase software and service offerings, or stay afloat in a highly competitive industry. TCDI has certainly been part of the growth trend as we have completed multiple strategic deals in the past five years, including our most recent acquisition of Cicayda, an e-discovery, legal hold, and managed document review provider.

From a market perspective, our e-discovery universe has certainly expanded since 2004 and many experts believe that it will continue to do so well into 2024 and beyond. The growth and M&A activity in the industry has been interesting to watch and experience over the years from the corporate and vendor perspective, so who knows what things will look like during E-Discovery Day 2021

Keywords W/5 “still a thing”

It’s 2020 – we were supposed to have flying cars, hoverboards (the Back to the Future kind), and a world without keyword searches. I remember sitting on a webinar sixteen years ago and listening to presenters talk about keyword searches being obsolete in five to ten years as analytics and other tools took over. I distinctly remember that FOMO moment, and wanting to ditch my keywords and get to my buckets, folders, clusters, concepts and other similar solutions without a single keyword or operator.

The presenters were not completely wrong in their predictions. Analytics, Technology Assisted Review (TAR), Artificial Intelligence (AI), and other similar tools have not completely replaced keyword searches, but they have certainly enhanced search strategies across data populations. Regardless of the tools, we still have the same goals that we had back in 2004 – reduce the total population that makes its way through the funnel (we were big on funnels in 2004) so that more targeted populations make it into review; try to review and analyze like populations together; reduce the number of steps and touches it takes to get documents reviewed and produced; and do it all while reducing costs to the client.

Yes, keywords are still a thing, and they are still popular and needed across data populations.  We certainly haven’t eliminated the use of keywords, but we have some pretty cool tools to aid in the execution of terms and to supplement the culling and targeting of relevant data populations. At TCDI we built in keyword project functionality to our CVLynx software to expand on searching and analysis, and we have a gamut of other solutions that reduce our data population through the funnel – visual analytics, email threading, near duplicates, concept searching, concept clusters, suggestive coding, auto-coding, review provisioning, advanced database analytics and indexing, early case assessment (ECA), total case assessment (TCA), and of course good old-fashioned Boolean searching using keywords and other criteria. Keywords might not be gone, but they now have a lot of friends to help them along the way. Now if someone could make flying cars a reality. 

 Different decade, similar challenges

Thinking about my own experience and looking through TCDI’s archives there were definitely some very simple e-discovery needs and areas of focus in 2004. There were also a few hot buttons that still exist today, just in a slightly different form.  For example, in the early days of e-discovery projects general data handling and basic processing functionality and workflows were at the top of many e-discovery requirements documents, spelled out in granular detail.  Today, the majority of those line items are unspoken expectations of any e-discovery vendor or system, and a lack of being able to provide such service or solution would be followed by a very pleasant, “It was very nice to meet you.”

  • Search and retrieve documents in an online repository: No, but we have a very lovely Dewey Decimal System and library staff to assist you.
  • Render documents to image format: Not really, but you should see how well my 8-year-old draws. Looks just like the original document!
  • Ability to process email without having to print and scan:  Well, what are we going to do with all this paper if we don’t print 600,000 emails?!

At the very bottom of a good portion of the e-discovery RFPs or RFIs in the early 2000s was something that is at the top of the list today – security.  If security was covered back in the early days of e-discovery it often focused on physical security, a holdover from the days of dealing with pallets of paper records and scanning centers.  Today, security is not only at the forefront of every proposal and engagement, but it is a highly detailed part of the process that can include pages and pages of separate questionnaires, site visits, audits, audits of the audits, and enough documentation to satisfy a congressional inquiry.

Another interesting area of comparison between 2004 and 2020, especially when compared with responses from TCDI’s “Legal Technology and Practices” survey is that data volumes and management is still a significant pain point and cost concern.  In 2004 email was one of the biggest volume drivers, and it still is to some degree, but now data management has become more challenging for clients as the types of data continues to expand.  Collections from laptops, desktops, CD/DVDs, network shares, email servers, thumb drives that held two documents, and the occasional floppy disk were all the rage in 2004.  And while everything in 2004 could easily be tracked and managed in spreadsheets, many corporations and law firms are finding that project, task, and litigation management tools are becoming increasingly necessary and critical.

Fast forward to 2020, and you not only have to think about those same legacy resources for collection, but now everyone carries a high-speed processing computer, camera, and communication device in their pocket.  Cell phones and the apps they connect to have created a whole other galaxy of discoverable information.  Google is no longer just a really cool search engine.  It now hosts large cloud-based collaboration and communication tools that many corporations utilize across the world.  Oh, and those Facebook updates and comments that were posted into the ether along with other social media messages?  Those come into play and need to be collected, formatted properly, reviewed, and produced.  There is no shortage of data types and related challenges in 2020 when compared to the early years of e-discovery, but there are so many more tools and solutions to tackle the increases in data and data types.  Tools commonly used only in large scale litigation and voluminous collections in the early 2000s are now needed to manage everyday workflows for all matters, regardless of size, something we have seen across our CVLynx platform usage and confirmed in our 2020 survey.

New year, new decade, but remarkably similar challenges to those early days of e-discovery. We have more tools at our disposal and many more years of experience to help develop creative solutions.  Our ability as an industry to grow and adapt to an everchanging landscape of data, legal challenges, compressed timelines, and technological hurdles is impressive, and it has gotten better year after year.

So, cheers to another E-Discovery Day!  We have come a long way in the past sixteen years, and I can’t wait to see where the next sixteen will take us