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November 24, 2008

#2009 EDD Predictions

Crystal.ball Here are some of the things I think will happen in the world of e-discovery in 2009? First, and most obvious, there will be tons of litigation next year. Not just 10-20% more, but 20-30% more. Yes, lots of it will be collections work and bankruptcy, but there will be many related and spin-off disputes as well, not to mention the ever present labor and employment. Everyone will be more litigious, including the government. We just have to blame somebody. In short, 2009 will be a banner year for litigation. And with more litigation, of course, comes more e-discovery, lots more. 

So much for the obvious, now for the tricky stuff, what does this mean exactly to e-discovery lawyers and vendors, especially since this is taking place in a poor economy?

I think it means an explosion of metrics and proportionality arguments to drastically reduce the amount of ESI to be reviewed and produced. This is what I was talking about at Georgetown last week.

It may also mean that in-house counsel will finally become selective and pick new lawyers that get it, instead of their old stand-byes that don't. I doubt the budget will permit the cronyism system to continue.

I also predict the continued growth in the use of Special Masters. Judges are tired of having their case load over-burdened with complex, time consuming technical issues. Not everybody can be Judge Grimm. The parties might start to prefer that too.

Next, and this relates to the first prediction of metrics and reduced ESI volume, the vendors and software companies that focus their efforts on reducing the dataset will prosper. Those that continue the old ways of over-copying and review, will fall behind. This will be a year of significant changes, with the big winners and losers appearing at the end. As the pick-pocket said, "hang on to your wallet" or I am gonna get you.

2009 will also see an explosion of e-discovery classes in the law schools of America. It will come about because of the demand of private practitioners who need help from the new lawyers, and also because of the strong demand of the law students themselves. As I just mentioned in my last blog, the class I am going to teach at the University of Florida next semester "sold-out" in just five minutes. The students want a job after they graduate, so they can start paying off all of the mounting debt they have accrued. They understand that having some training in the hot new field of the day can give them a competitive edge. 

Finally, and this prediction is now a near certainty, next year will see the publication of my second book on e-discovery by the ABA. In a future post I'll tell you the name and more about it. In the meantime, pass the gravy please and save me some desert.


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