Migrated from eDJGroupInc.com. Author: Babs Deacon. Published: 2013-10-09 20:00:00Format, images and links may no longer function correctly. 

I finally got to “The Music City” last week when I was asked to speak at Cicayda’s eDiscovery RelEvent.  Besides never having been in that neck of the woods and having always wanting to see the Nashville Parthenon, I was excited to try out my new theory on the attendees.  I gave a presentation entitled, In Situ Discovery, It’s the End of the World as We Know it.  I’m happy to report that no one laughed me out of the room and that the discussion with the group was interesting.

By in situ discovery, I mean that in the future, we will perform less and less harvesting, processing, review and production, and more screening of information in the application in which it was originally created.  I believe that “responding” parties will find ways to screen data for privilege and confidentiality and that “receiving” parties will use similar tools to find the information they consider important.

I realize that there are many hurdles between us and achieving this future state; however, I think we are well on our way.  For the technology perspective, I reached out to several thought leaders on the eDiscovery software development side of the aisle, including X1 Discovery and Nextpoint.  They agreed with me that we were headed in that direction, and with more and more information accessible in the cloud, we would want to be able to perform more discovery tasks on the data, without duplicating it, and that developers would be striving to add discovery tools to cloud applications or create new offerings that would allow in situ discovery of cloud hosted data.

From a more legal point of view, and remember I’m not an attorney, I think several trends will encourage this evolution:  judges managing discovery; judges’ insistence on cooperation and frustration with delays due to eDiscovery volumes; and what I’m now calling,  “Peck’s Maxim”.  Besides, being a cause célèbre related to predictive coding, Federal Magistrate Judge Andrew Peck of the United States District Court for the Southern District of New York has repeatedly stated at industry events that not asking for a Rule 502(d) order before eDiscovery borders on legal malpractice.  I believe that the growing prevalence of claw-back orders protecting privilege will allow for all parties to “review” data in its original location.

I think the effort to provide in situ tools and workflows will be the, dare I say it, industry disruptor of our age.   I will be deepening my research on the topic and publishing a report in 2014.  I invite interested members of the eDiscovery community to comment on this post and/or send me an email to participate in the discussion.


Meanwhile speaking of the Nashville Parthenon and its recently completed statue of the Goddess Athena, one of the other RelEvent speakers Kelly Twigger, Principal of ESI Attorneys and creator of the iPad App: E-Discovery Assistant, presented on the prevalence of social media, cloud and mobile application data in eDiscovery.  Ms. Twigger is an eDiscovery “hired gun”, so to speak, for corporations and firms without in-house eDiscovery experience.  Her firm has put its money where it’s mouth is by developing a mobile application designed to quickly get attorneys up and running in what for many litigators, is a new area.

Another speaker did not disappoint.  I had heard about Casey Flaherty of Kia Motor’s research into the computer competency of his outside counsel’s associates but I had never heard him speak about his work in person.  Casey has a very pragmatic, real-world understanding about the billable life of the average associate.  He doesn’t think clients should pay for associate’s time if they aren’t using basic time-saving MS OfficeTM tools and skills.  He believes law schools and law firms should make sure that all new and junior to mid-level associates are able to perform basic drafting and organization functions in an efficient manner.

I believe it shouldn’t just be clients demanding greater efficiencies, associates should demand this kind of training so that they are empowered to do more “lawyering” and spend less time manually updating outlines, contracts and spreadsheets.  As firms have slashed secretary to attorney ratios, they have assumed because associates can all type, they are also able to handle most of the more sophisticated tasks that secretaries, paralegals, and word processing departments performed as well, which we all know is not the case.  Mr. Flaherty believes that the billing rate for outside attorneys without twenty-first century computer skills should be reduced to make up for the time they spend updating lengthy documents by hand.  I recommend that people read the articles listed on Casey’s Linkedin page for background.

 Finally, besides the marvelous Cicayda event, and visit to Nashville, I must include a mention  of my trip to Puckett’s Grocery and Restaurant.  Who doesn’t like eating pulled pork down South? And the “Redneck Burrito” didn’t disappoint.  Can’t wait till I get to visit, again.


Babs’ current research focuses on eDiscovery Service Providers and Pricing Models, the proposed amendments to the FRCP and the future of in Situ Discovery.


Connect with Babs:

  • Linkedin
  • Email: Babs@edjGroupinc.com
  • Twitter: @BabFab
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