Looking back at the major happenings in the e-discovery world this year, there are some clear trends that predict what 2010 will bring us.  Though there are always some surprises, I think these will be the major themes for the New Year.

• In-sourcing will continue at a steady pace.  In the past year, many corporations started taking their pre-review discovery tasks and more of their routine review work in house.  At the same time, many law firms responded to a weak economy by finding ways to capture more client billables within their own walls.  Processing electronic data in house, all the time or below a certain threshold, will still be the easiest target for cost/billable containment in 2010.  The best solutions will help you do that in a defensible manner using people, processes, and smart technology.

• Vendor pricing will level off while consolidation continues.  In 2009, we saw huge drops in the price per gigabyte to process data for review.  Some of this was caused by the economic realities of vendors just trying to keep the doors open, the rest by the devaluation of processing services with the upswing in in-sourcing and availability of better technologies.  The pace of litigation in Q4 2009 seems to be picking up and prices are starting to level off as the economy improves.

• Project management will be key in 2010.   Most legal professionals are very good at the legal part of discovery and rely on litigation support to help manage the logistics of the evidence from cradle to grave.  With the quantity and locations of electronic data growing leaps and bounds and new forms coming into play (social media like Facebook and Twitter, cloud computing, third party data storage, SMS text and IM), a more formal project management approach will likely emerge as the best way to tame the discovery management beast.  Also, the increase in alternative and flat-fee based billing models in law firms will require formal project management and metrics to be cost-effective.

• The who, what, how, why, when, and where of searching will be important.  If you look at most of the pivotal cases in 2009 and 2008, so many involved discovery issues related to problems with litigation holds and discovery scope (who, what, where, and when of searching for, preserving, and collection of data).  Other important cases involved the how and why of searching data during analysis and review.  Though almost a cliché, the idea of “defensible search” will become more formalized and applied throughout the discovery equation.

• Early case assessment (ECA) will also become more commonplace.  Long considered just another marketing tool vendors use to sell more services/solutions, the use of data analytics and ECA earlier in the traditional review cycle will be more popular in 2010.  The cost has come down, the increasing volume of data will beg for it, and firms will need it to make better decisions on how to proceed with a case.  If legal professionals can be shown the value of ECA in helping them determine review workflow, defensible data reduction, cost containment, and even case strategies, it will happen sooner.

• Cooperation is coming…with a carrot or a stick.  In the wake of the Sedona Conference’s Cooperation Proclamation, Judge Grimm’s bellwether Mayflower opinion, and state e-discovery laws that support cooperation (California’s new AB5 and judicial rules, for example), we’ll either see it happen proactively or as a result of rulings from the bench.  Many judges I’ve spoken to in the past 9 months see this as a key theme for 2010.  Best to look carefully at how cooperation fits into your case strategy and use it strategically to avoid the judicial stick of 26(g) sanctions and the like. 

In addition to the major themes above, recent surveys have shown that nearly 60% of Americans are unhappy with their jobs and plan to make a change in the New Year.  Expect to see more people movement in 2010 with the bulk of the shifts happening in law firms and in the vendorscape.  Consolidation and firm instability will be the main factors.

Overall, this year will be an extension of 2009 with more development in the themes above.  Closer to home, what will 2010 have in store for you?  As we move through this holiday season and into the next year, keep in mind the image of Janus.  Look at your past year, what the New Year may hold, and resolve to be happy and looking forward no matter what happens.

Doug Kaminski is a Director for Clearwell Systems, Inc. and can be reached at This e-mail address is being protected from spam bots, you need JavaScript enabled to view it for more information or opinions on this article