Just over one month into the new year, TLS Directors Tom Balmer and Stefan Nigam have joined forces to discuss the trends shaping global eDiscovery in 2023. Whether it is streamlining document disclosure through AI or collecting data from blockchain, this year will be full of challenges for legal practitioners. But it also presents a world of opportunity to creatively leverage technology to solve the problems we will face.

 

1. Data’s Continued Growth and Development

With the shift to remote working and the variety of platforms and devices we use to communicate, it is easy to see how the volume of data that needs analysis will continue to grow exponentially. Alongside this growth comes the changing data types that need to be dealt with. Emails, file shares, and text messages are no longer the main sources of data –instant messages, social media, collaboration platforms, and cloud-based enterprise software present a challenge for both collection and analysis.

As digital assets play an increasing role in global economics, the legal tech space will need to update its tool kit. Companies like Chainalysis, which provides blockchain data analysis, will become part of the ecosystem for disputes lawyers and technologists. Additionally, NFT exchanges and virtual reality will produce vast amounts of diverse data. To effectively navigate these changes, it will be crucial for professionals to partner with AI-powered review solution providers that can extract blockchain data, analyse smart contracts, perform image recognition and computer vision, parse audio, and identify and present concepts from multiple data sources.

 

2. AI Becomes the Norm

As the use of AI within eDiscovery becomes the norm, there has been an uptick in questions from law firms and end clients as to what extent AI is being used within our suite of technology. In a positive way, they want to ensure they are utilising it to enhance their offerings or workflows. Continuous Active Learning – previously mentioned only when data volumes were too large for human review – is now commonplace in matters of all sizes.

Significantly, the importance and widespread acceptance of the effective use of AI in the eDisclosure process is gradually being recognised by courts, regulators, and other authorities globally. For example, the recent permanent adoption of the Disclosure Pilot Rules into the Civil Procedure Rules of England & Wales illustrates the High Court’s recognition that, in matters involving documentary disclosure, the use of Technology Assisted Review is critical as it increases efficiency, reduces costs, and achieves higher degrees of accuracy than human review.

Moreover, we hope to see increased recognition of AI by courts, regulators, and other authorities in the APAC region in 2023. With Australia’s Federal Court, the DOJ’s antitrust division, and the UK’s permanent disclosure procedure rules all mandating the use of Technology Assisted Review in document-heavy cases, it is only a matter of time before others follow suit.

Last year, a decision by the Hong Kong Court noted it was not necessary for parties to seek the Court's permission to use Technology Assisted Review. Similarly, the Shenzhen Court of International Arbitration (SCIA) is one of the few arbitration institutions to set out specific procedural rules dealing with the use of technology in international arbitration.

While these developments are modest compared to those in Australia, the UK, and the US, we believe the global fascination with AI will focus the attention of APAC authorities. The use of AI in litigation and regulatory proceedings, particularly in internationally minded jurisdictions such as Singapore and the UAE, will become more prevalent – maybe even commonplace for larger matters.

 

3. Alternative Uses for eDiscovery Tech

The term eDiscovery was born of its obvious connection to the discovery process and has traditionally only been used in disputes. However, with technological advancements, changes in privacy laws, and heightened security risks, clients will increasingly be looking to their external advisers to help them leverage existing technologies to solve these problems.

eDiscovery technology has been used to support incident response workflows, data-subject access requests, news analysis in defamation cases, garnering insights into large datasets for research projects, and analysing employee departure and theft – just to name a few. The use cases are endless and will expand as quickly as data grows.

 

4. Improved Information Governance

As the data produced and stored by companies increases exponentially, the need for legal teams to review this data increases. It is evident this process will only continue to become more complicated and expensive. Furthermore, with work-from-home arrangements more commonplace and large workforce layoffs seeing huge staff turnovers (many of whom will take data with them), the associated cybersecurity risks are incredible.

For this reason, we expect a marked increase in companies taking a long hard look at the left side of the Electronic Discovery Reference Model (EDRM) and starting to evaluate, design, and/or invest in their information governance strategies. Expect to see companies implementing stricter retention policies, revising policies to comply with new legal requirements, and dedicating resources to manage and reduce the amount of digital data created and stored.

If properly executed, information governance will reduce the burden on each subsequent step in the EDRM, driving efficiencies and reducing costs for downstream eDiscovery workflows. TLS has and continues to invest in information governance technology and expertise and will be making an exciting announcement over the next few months.

 

5. SaaS and Cloud Platforms in eDiscovery

The legal industry is expected to increasingly adopt Software as a Service (SaaS) and cloud platforms in 2023 and beyond due to their scalability and cost-effective pay-as-you-go structures. From Office365 to Google Docs, Dropbox, and Slack, these cloud infrastructures allow for the storage of large amounts of eDiscovery data and eliminate significant upfront costs. According to Gartner, enterprise IT spending on public cloud computing will surpass traditional IT by 2025, with cloud offerings projected to total USD 591.18 billion in 2023, up from USD 490.3 billion in 2022.

While the legal industry has traditionally been slow to adopt cloud technology, more law firms are now looking to explore the potential use cases. Alongside data extraction issues (such as how to access and process documents shared as links), eDiscovery practitioners must also be able to advise on the advantages and limitations of cloud-based eDiscovery platforms. For example, it is critical to understand when a matter is too complex or data-intensive for cloud-based software to operate efficiently or when local data laws necessitate the use of in-jurisdiction data centres.

Many legal service providers will continue to invest in on-premise data centres to ensure complete control over the eDiscovery back end while also deploying cloud-based solutions to keep pace with client requirements and present their technological flexibility.