When Change Is the Only Constant, You Can Thrive, Adapt or Die Off: Embrace Change in Ediscovery

Change is an overwhelming force: businesses that fail to innovate or adapt quickly are crushed in short order. The last decade has shown us all clearly that no business is “too big to fail.” In fact, only 12 percent of Fortune 500 companies from 1955 still earn the distinction — if they exist at all — in 2017.

Much of that turnover is due to the staggering pace of technological innovation. Cars were a relatively new invention 100 years ago; now, they drive themselves. And computer technology puts cars to shame: if automotive technology developed as quickly as computers have in the last 35 years, a Ford Mustang would get better than 3,500,000 miles per gallon, accelerate from zero to 60 in 0.0034 seconds and cost less than $4,500.

Discovery has experienced a similar sea change. The Federal Rules of Civil Procedure were amended in 2006 to specifically address the relatively new issues of electronic discovery, or ediscovery. A mere 12 years later, the overwhelming majority of discovery is ediscovery. Legal holds are no longer sent by memo or even manual email. Today’s legal hold software allows hold notices to be deployed within seconds of learning of potential litigation and tracks compliance automatically. Rather than forensically imaging entire servers, electronically stored information (ESI) can now be effortlessly identified and preserved in place. Similarly, technology-assisted review uses artificial intelligence (AI) to revolutionize the review process, replacing rooms full of tired, bleary-eyed document reviewers and compiling better results in a fraction of the time.

As with other aspects of business, companies can either adapt to the changes in ediscovery or be killed off by the competition. The cost of litigating a single case could be enough to wipe out a business that tries to use old methods in a new world of overwhelming data volume and complexity.

On the other hand, organizations that adopt automated and AI-driven tools reduce their costs and their risks while enhancing the defensibility and speed of their results, enabling faster and better early case assessment. The key is deciding that your business is going to ride the wave of change instead of being crushed on the shore.

Old Model ‘Dodo’ Businesses vs. Their New Model Replacements

  • Blockbuster vs. Netflix
  • Borders vs. Amazon
  • BlackBerry vs. Android (Google) and Apple
  • Taxi companies vs. Uber and Lyft
  • USPS vs. UPS, FedEx, and recently Amazon Logistics

You Can Aim to Survive or You Can Thrive

When it comes to change, mindset is critical. You might view change as a never-ending risk that your business needs to overcome, requiring a constant battle to adapt and stay on your feet. With this approach, your company might survive changes or it might not, depending on how quickly you can adjust course and how well you predict the future.

But there is another option: you can view change not as a risk that threatens your survival but as an opportunity to thrive, displaying leadership and differentiating yourself and your business as a change agent in your market.

This is no small task. It takes bravery, flexibility, adaptability and capability. But the rewards can be phenomenal.

Differentiate Your Business

How can you set your business apart by staying ahead of changes in ediscovery? Here are a few ideas.

  • Get on board with cloud-based ediscovery software. Locally installed software is going the way of vinyl and Betamax, becoming a curiosity, at best. Cloud-based software is accessible from anywhere, always up to date without maintenance or downtime and more affordable over time than on-site systems.
  • Embrace automation and AI. These technologies are no longer the future; they are the present. Both allow businesses to winnow through reams of data in a fraction of the time required for manual review.
  • Rethink your pricing structure. While you’re upgrading your software, consider treating technological costs as a pass-through directly to the user. Today’s software allows costs to be tracked by client and by matter, so these costs can be passed to clients easily and transparently.
  • Sell peace of mind. Enhance your data security and privacy protections and leverage those strengths as selling points. In a world beleaguered by security breaches and cyber attacks, clients are looking for businesses that will reliably protect their data.
  • Be proactive. Look for ways to use the strengths of your ediscovery capabilities — identifying, collecting and reviewing diverse types of data from various locations — to identify problems before they lead to litigation, rather than always reacting to outside threats.

Change doesn’t have to be intimidating. Businesses that see the advantages of ediscovery technology and that adapt smoothly, flexibly and proactively won’t just survive change: they can drive it.

The Estonia Paradigm

Estonia, boasting just over a million people, has reinvented itself as a futuristic digital society. Through a coordinated effort, all government services are now digitized and integrated into a unified platform that allows secure record access from anywhere. What does that mean in practical terms?

Citizens in Estonia can now vote or contest tickets remotely. Loan applications don’t have to be “filled out”: they can be assembled in seconds from verified bank, income and tax records. Emergency response crews can access an unconscious patient’s medical records, including prescription information, and can begin appropriate treatment immediately — while forwarding that information to the destination hospital to allow it to prepare for their arrival. Judges, lawyers and litigants have their information conveyed directly to the court system, following Estonia’s “once only” policy: information need only be entered once to be used anywhere.

And Estonia is willing to share its infrastructure in an effort to expand its population — if not physically, then virtually. The country launched an online residency program in 2014, allowing individuals and businesses with no physical presence in the country to establish virtual residency. Its low business tax rates and encouragement of technological development offer a welcoming environment for entrepreneurs and innovators. It’s working; today, Estonia’s virtual population is growing faster than its physical one.

How would the U.S. legal system be transformed if governmental and health records were available over a secure controlled network? Ediscovery costs could plummet and timelines to collect and produce data could evaporate with free, instantaneous, monitored access to records. What does it mean when “residents” might live anywhere? Are Estonia’s virtual residents protected by the GDPR, giving them greater rights to control their personal information? Never mind a sea change in discovery; Estonia’s approach could revolutionize everything about our practice of law.