EDRM Global Advisory Council 2023 eDiscovery Predictions & Beyond

As the new year begins, the eDiscovery industry is looking ahead to what the future holds. The pandemic has brought about a number of changes, including more remote work and remote meetings, and it is clear that these changes are here to stay. The EDRM Global Advisory Council has gathered leading experts in the field to share their predictions for the year ahead, and the trends that will shape the industry in the years to come.

One of the most significant predictions is the continued growth of AI and machine learning in eDiscovery. As technology continues to advance, AI and machine learning will play an even greater role in the eDiscovery process, helping to streamline and automate tasks that were once done manually. This will help to make the eDiscovery process more efficient and cost-effective, while also helping to improve the accuracy and consistency of the results.

David R. Cohen, Partner at Reed Smith and EDRM Chair of the Project Trustees, believes that remote options will continue to be preferred in the eDiscovery process, even after the pandemic subsides. “The pandemic forced a number of changes, including more remote work, remote meetings, remote depositions, and even remote hearings,” Cohen said. “By and large it has worked and, in some cases, created advantages like reducing wasted time and expense. While face-to-face meetings and conferences and in-person collaboration still have certain advantages, we are never going back to ‘the way it was’—people will continue to choose remote options where there are cost and efficiency benefits that outweigh the benefits of commuting to an office or court and/or otherwise meeting in person.”

Ralph Losey, Partner at Losey Law, predicts that 2023 will end the way it began, with everybody in technology, including eDiscovery, talking about OpenAI and Chat GPT. Maybe a few of the ediscovery vendors will begin to implement some chat GPT AI connection in 2024 as part of the software. If so, I predict that will come at the end of the year, or more likely in 2024. Hopefully the smart companies have started work on it already. I also predict that there will be a lot of hype and total nonsense spewed about Chat GPT. It is not mankind’s savior or enemy. But it is one hell of an impressive, powerful software tool. 

As usual, do your own due diligence on everything about GPT, including especially stuff, made up by Chat GPT itself. It tells lies, unintentionally, just as smoothly and convincingly (except to experts) and also tells the truth, again unintentionally. There is no intent, no mind, no entity here of any kind, even though it may seem like it.”

Shannon Bales, Manager of Litigation Support at Munger, Tolles & Olson, believes that education will be a key challenge for eDiscovery professionals in 2023. “The importance of groups like the EDRM and legaltech conferences will become more important to keep up with the massive amount of continuing education necessary to keep skills relevant within the litigation lifecycle,” Bales said.

Meanwhile, Doug Austin, Editor at eDiscovery Today, predicts that blockchain evidence will present a major challenge for eDiscovery professionals in 2023. “The FTX cryptocurrency bankruptcy and subsequent litigation is forcing discovery of blockchain data to the forefront,” Austin said. “Given the fact that at least five other cryptocurrency exchanges failed in 2022, expect a lot more litigation, which means more discovery. Let’s see lawyers try to push those blockchain transactions into the ‘document paradigm’ that they tend to force everything else into!”

Not surprisingly, Merlin Search Technologies Founder and CEO John Tredennick predicts that “the next generation of AI software will play an even greater role in ediscovery this coming year. Six weeks ago, OpenAI released new AI software called ChatGPT. It learns from reading billions of documents, with input from humans to make it even smarter. Amazingly, ChatGPT can answer complex questions and generate conversational responses that sound eerily like it came from a human. (It reportedly passed a Wharton MBA exam and  the three-part U.S. Medical LIcensing Exam.) On the ediscovery front, ChatGPT seems capable of analyzing large volumes of case documents and even determining which are responsive to a discovery request. 

ChatGPT is only one of many new AI tools hitting the market that will impact the delivery of legal services. These powerful algorithms can answer legal questions, analyze  and monitor contract provisions, summarize document content and may one day put review teams out of business. ChatGPT is still in beta but has prompted Google, Amazon, Microsoft and many others to go all in on this next level of “Deep Learning” AI. 

And Tredennick further predicts ChatGPT will quickly sweep through the legal world as vendors bring forth applications using the underlying GPT engine. There is no turning back here. Smart AI algorithms will inevitably take over many roles previously reserved for legal professionals, automating formerly manual processes and making justice more affordable in the bargain”. 

In looking into his 2023 crystal ball, Robert Keeling, Partner at Sidley Austin and Chair of the Global Advisory Council predicts that “internal investigations will remain the area where eDiscovery technology and workflows are leveraged to their fullest capacities. Internal investigations remain fertile ground for creativity with eDiscovery tools and a focus on what actually matters – namely finding the most relevant documents and information”.

Sharing his insights for 2023, Cash Butler, Founder, ClariLegal, “predicts that endpoint security, cyber security, and privacy issues will continue to grow and really hit small and mid-law firms and businesses harder.  Insurance coverage will become unaffordable and hard to get as well”.

Dennis Kennedy, Director, Center for Law, Technology & Innovation at Michigan State University College of Law sees that “there are signs everywhere that the long-anticipated transition of ediscovery from documents and email to databases and non-textual and cloud-based data (video, location, sensor, biometrics, transactions, and more) will begin to accelerate at a dizzying pace and require the handling and analysis of gigantic amounts of information in new ways. What do you need to do to get ready for it? Where will these kinds of data fit into the EDRM?”

Peering into eDiscovery’s 2023 future Tom O’Connor shared his future thoughts “I believe 2023 will be a very busy year for litigators with eDiscovery due to three factors:

1.         Old cases that were backed up due to Covid delays continue to come back to active status

2.         An increasing number of new data products, especially in collaboration and messaging, become more widespread

3.         AI will become more not less confusing as new products crowd the field with less transparency and more marketing hyperbole”

The #DataDiva, Debbie Reynolds, Debbie Reynolds Consulting, LLC, Founder, CEO, and Chief Data Privacy Officer predicts “the exponential expansion of IoT devices in the enterprise (which now outnumber computers), coupled with the advent of decentralized computing and generative AI, will present a complex array of eDiscovery challenges in 2023. As these technologies continue to generate vast amounts of data and raise concerns about privacy, eDiscovery will address a proliferation of data sources and navigate new privacy issues related to the use of images.” 

“2023 is poised to be the year that the legal industry starts to standardize how to review and produce short messages,” predicts Cristin K. Traylor, Relativity, Director, Law Firm Strategy Marketing. “Much has been discussed about preservation and collection but talk surrounding review and production processes has been limited. I predict that, as this type of data continues its exponential growth trajectory, the whole of the industry will begin addressing these parts of the workflows more systematically to apply search terms and other filtering, create definitions of where a short message should begin and end for review purposes, and discover how AI can streamline identification and analysis.” 

Mary Mack, CEO and Chief Legal Technologist at EDRM thinks “new ways of addressing old problems will generate some unencumbered funds for corporate legal departments by reducing costs of privilege logging and cross platform deduplication of email.  The mainstreaming of ChatGPT will provide the fuel for technology assisted review adoption, with less fear and more awareness on the part of those who have not yet taken the plunge.  Entire specialties of blockchain and bitcoin evidence, customer relationship management (CRM) platform evidence, project management, contract lifecycle management and IP management system evidence will emerge.  AI will make the security posture of law firms safer for those who adopt the technology, providing they give their security training and culture a boost as well.” 

According to Amy Juers, CEO of Edge Marketing, Inc., “Prior to the pandemic, a lot of eDiscovery companies and firms were making a big push to expand their footprint internationally. It is difficult to make a definitive prediction about the future of US businesses and their push to go international now that the pandemic is over, as the situation is complex and can be affected by a number of factors. However, it is likely that as the world economy recovers, businesses will start to look for new markets and opportunities to expand again. This time around, though, the expansion may look different because we have learned so much over the past three years about working in a remote environment. The strategy, plan and tactics for entering international markets is likely going to look a lot different.” 

Putting on his predictions hat, Darius Bennett, J.D. shared “I predict that the legal industry will attempt a full return to normalcy this year. From my perspective, 2022 was a test run with a good deal of tentativeness. Now, due to pandemic fatigue and a general sense of wanting to live life more fully, Americans in particular are prepared to return, full throttle, to life as if there is no COVID or RSV. This means maskless, in-person attendance at industry events, more work-related in-person social gatherings, and, where budgets permit, more travel for work. What is not going away is remote work and video conferences for court hearings. They are both quite useful expedients, and it is a wise decision to keep them. Simply put, some work can and should be done from home so that those who need the flexibility have it and consequently can produce higher quality results. Similarly, some hearings do not truly necessitate an in-person appearance. This will save time for the judges, allow them to meaningfully work through their considerable backlogs, create more comfort for all involved, and will obviate waiting in line at the courthouse for your case to be called. In summary, 2023 is the year of both re-emerging and blending.”

Ralph Losey, Partner at Losey Law predicts “that 2023 will end the way it began, with everybody in technology, including eDiscovery, talking about OpenAI and Chat GPT. Maybe a few of the ediscovery vendors will begin to implement some chat GPT AI connection in 2024 as part of the software. If so, I predict that will come at the end of the year, or more likely in 2024. Hopefully the smart companies have started work on it already. I also predict that there will be a lot of hype and total nonsense spewed about Chat GPT. It is not mankind’s savior or enemy. But it is one hell of an impressive, powerful software tool. 

As usual, do your own due diligence on everything about GPT, including especially stuff, made up by Chat GPT itself. It tells lies, unintentionally, just as smoothly and convincingly (except to experts) and also tells the truth, again unintentionally. There is no intent, no mind, no entity here of any kind, even though it may seem like it.”

Brian Corbin, VP, Legal Solutions and Operational Excellence at QuisLex is also on the generative AI with “The growing use of generative AI will continue to make headlines and cause headaches in 2023. Putting a powerful, easy-to-use tool like ChatGPT into the hands of the masses will directly result in intellectual property quandaries around the ownership of newly “created” content; data privacy violations; and reliance on unvetted, potentially fraudulent, and biased data. Coupled with the explosion of APIs, which increase efficiency but carry a host of security and governance risks, low-quality data sourced from generative AI tools can now be piped more easily, quickly, and undetected through corporate environments, compounding these problems. While ChatGPT is democratizing access to AI, its detriments and downsides are going to be put fully on display in 2023.”

TracyAnn Eggen, VP – Product Transformation and Customer Success, LIGL shares her predictions:

“Predictions.  Where is the easy button.  With the increasing work and the limited resources.  Predictions.

More tech and partner related announcements for consolidation, Start-up specifically for short message and easier collections.

1. Legal Operations will begin the transformation
   1. Did strategic hires from paralegal to legal ops show results
   2. Legal Ops teams will include, privacy, security, compliance members and not just legal heroes and heroines
      1. Creating cross-functionality within organizations and working groups

2. Continued trend of moving Legal Ops outside the Legal Dept to Finance.
3. Legal Ops will set standards of areas of knowledge and hiring requirements 
4. Organizations will be looking for more value and interoperability. Return to one throat to choke.
5. Continue to do more with less

And lastly, do you think we will see more use of virtual and augmented reality technology in eDiscovery: Technology? I predict that “virtual and augmented reality will be used more frequently to visualize data and assist in the review and analysis of large volumes of information.” 

In conclusion, the eDiscovery industry is facing a number of exciting challenges and opportunities in the coming year. From the continued growth of AI and machine learning to the emergence of blockchain evidence and the importance of education and professional development, there is much to be excited about as we move forward. With the help of the EDRM Global Advisory Council and other leading experts in the field, we can be confident that the eDiscovery industry will continue to evolve and thrive in the years to come.