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By Craig Ball

Law Technology News

February 4, 2008

I glimpsed the future while mediating database discovery disputes in a recent multidistrict product liability matter. There was shuttle diplomacy over sample sizes and search terms. Collaborative documents memorialized hypertechnical agreements. IT experts darted in and out of arcane discussions about SAP, Oracle, e-rooms and XML.

Because the parties came together like the happy tangle of cables snaking across the table to routers and outlets, I didn't have to don my special master cap and direct the outcome. Yet, I doubt there'd have been the same preparation and cooperation without a neutral presiding. Folks just behave better when company comes.

We will see more expert-mediated conferences as courts grapple with the technical intricacies of EDD and the inflated costs that dog inept efforts. It just makes economic sense. In large cases, EDD expenses alone can dwarf the entire amount in controversy in smaller cases; in any size case, EDD mistakes can determine outcomes. Why wouldn't you resolve foreseeable disputes before you bet the company?

As I gaze into my crystal ball, here are 17 more EDD predictions:

Virtual machines shine as a form of production for challenging ESI. When a level litigation playing field requires one side to see and manipulate ESI just as the other side can, it may seem a virtually impossible undertaking absent identical hardware and software. Now, it's "virtually" possible.

Because software code can emulate hardware, an entire virtual computer can exist within an onscreen window. These virtual machines look and function just like the real thing, at little cost. So tomorrow's e-production challenge -- particularly of databases -- may be met by delivering a virtual machine file containing relevant, nonprivileged content in its native operating environment that the recipient loads and explores like its real-world counterpart.

The hurdles are legal more than technical. Software and operating system licensing must accommodate e-discovery when evidence is bound up with pricey programs, or courts should establish a litigation "fair use" exception.

Fueled by virtualization, thin client computing returns. Readers over 40 will remember thin client computing 1.0 -- those "dumb" terminals connected to mainframes. Thin client 2.0 is different because devices will perform some offline tasks; but expect to see local hard drives marginalized by rapid growth of virtualized applications tied to corporate networks and the internet.

Personal data principally resides on portable media and the Internet. Data is the ultimate portable commodity, so it's odd we don't take our computing environments with us. We will. If desktop machines survive, they will be little more than screens with network connectivity temporarily hosting the virtual identities we carry in our pockets or store online. Local hard drives will be an increasingly irrelevant place to search for files as EDD turns to personal storage devices and online storage.

We'll share a common EDD vocabulary. You say potato and I say quasinative. With princely sums riding on the outcome, shouldn't we mean exactly the same thing? Thanks to, e.g., The Sedona Conference, EDRM, blogs and publications, there's progress afoot. Do your part. When someone mistakenly refers to "hash values" as "hash marks," rap them smartly on the snout with a rolled-up newspaper.

Intelligent harvest mechanisms. Though cross-network search and collection will flourish, expect to see "plug and pry" devices used by support staff (or dispatched to custodians) to suck up potentially responsive information via USB and other connections. Think "Ghostbusters" sans green slime.

It'll cost less to store a terabyte of data than to buy a tank of gasoline. At the rate these two benchmarks are diverging, expect this prediction to materialize within three years for an online terabyte. For the cost of a local terabyte, you'll fill a Hummer's tank twice.

EDD custodial data volumes swell by three orders of magnitude. Rocketing data volumes reflect the changing face of messaging, richer content, more complex applications and still-feasible increases in hard drive capacities coupled with still-plummeting cost-per-gigabyte.

Routine production of system metadata. As if a switch was flipped, we will wake to the realization that system metadata, such as file names, paths and dates are essential to managing e-records and wonder why we wasted time fighting about it. We'll bicker about application metadata until the other epiphany kicks in. Then, we'll rue the time and money wasted on TIFF productions when a sensible native or hybrid production would have been better and cheaper.

Generic production containers for native and quasi-native production. Some argue XML is the answer, and they're partly right; but you also can tuck a native file inside an Adobe PDF file and enjoy the best of both formats. We need more generic production container options.

Low-cost desktop review tools. Generic production containers require tools to view, search, annotate and redact their contents. Today, we buy Concordance and Summation or lease online review tools. Tomorrow, vendors will gravitate to the Adobe Reader model, giving away desktop review tools to profit from collecting and processing the ESI that is filling those containers.

Hosted production takes hold. We bank and do our taxes online. Soon we'll receive and review ESI the same way. It'll take time to gain lawyers' trust; longer still if a high-profile gaffe makes news.

Widespread use of hashing for authentication and identification. Better buy the bumper sticker that says, "They'll get my Bates stamp when they pry it from my cold, dead hands," because it's going the way of fax machines. Hashing isn't a complete substitute, but in certain ways, it's superior. Imagine near-instantaneous authentication of e-records of any size or complexity. Native production and hashing go together like cereal and milk.

Data footprints of serial litigants become well-kept and well-known. Oft-sued companies won't reinvent the wheel discovering their data footprint with each new case. They'll track it on an ongoing basis. Likewise, plaintiffs will share information on corporate ESI much as they share data on product defects and experts.

Key-based encryption demarks and encapsulates privileged communications. We expend fortunes ginning seeds of privilege from bales of ESI. If securely encrypted when created, privileged communications could be easily quarantined or just left alone. Everyone wants frictionless e-mail, but privileged communications that warrant special status oblige special handling.

Backup tape usage wanes as costs drop and active sources proliferate. Backup tape has outlived many who predicted its demise; but in five years it will drop by 30 percent in favor of network mirroring.

Location data routinely recorded and discovered. Our cars/phones track us, soon GPS will be built into other products. When that data is relevant, we'll need to preserve and produce it.

U.S. data privacy rights move closer to the EU model. In the EU, where memories of genocide linger, data privacy is a fundamental human right. Stateside, plan on increased privacy push back with respect to harvesting and reviewing employee e-mail and other private ESI.