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Clearwell Systems Announces 2009 Electronic Discovery Forecast

Electronic Discovery Insiders Provide Top 10 Predictions with Insights Gathered from More Than 100 Enterprises and Law Firms

MOUNTAIN VIEW, Calif.—December 11, 2008—Clearwell Systems Inc., a leader in intelligent e-discovery, today announced its electronic discovery (e-discovery) predictions for 2009, outlining the industry’s top 10 expected trends for the coming year, developed in collaboration with HP. Given the current economic climate, enterprises are expected to face increased litigation and regulatory inquiries, as well as escalating costs associated with e-discovery. As a result, enterprises and law firms forecast that litigation readiness will finally go mainstream, versus the ad-hoc approaches relied upon to date. By focusing on proactive e-discovery best practices to mitigate excessive legal costs, enterprises are expected to better manage the burden of litigation and investigations in 2009.

Top 10 Electronic Discovery Predictions for 2009 include:

  1. Government Investigations Increase: In the coming year, economic tensions and the increase in high-profile scandals will lead to a rise in government data requests, compliance audits and investigations from both a state and federal level.
  2. Corporations Take More Control over E-Discovery: 2009 should reveal a trend that has corporations looking to secure more ownership over the e-discovery process to enhance control and reduce costs. Leveraging in-house technologies like Clearwell, internal legal teams will deploy early case assessment methodologies and data reduction strategies. By being more involved earlier in the process, general counsel will increasingly work with outside counsel to reduce review costs by deploying data culling and case management strategies.
  3. Industry Push For Collaboration: Next year we will see an increased effort by the Sedona Conference and the judiciary to increasingly push the e-discovery industry to be more collaborative — in contrast to traditional adversarial approaches. While ambitious, this initiative, if successful, will help to reduce discovery costs as parties seek to minimize needless conflicts during the e-discovery process.
  4. Federal Rules of Evidence (FRE) 502 Helps Automated Reviews: To date, the use of claw back agreements, used to protect against the inadvertent disclosure of privileged information, have been sparingly deployed since the legal standards have varied widely from jurisdiction to jurisdiction. 2009 ushers in the implementation of FRE 502, which will increasingly make it possible to safely use automated analytical tools to minimize the high cost of the traditional “eyes-on” attorney review processes.
  5. “Showing Your Work” Becomes Mandatory: Next year, given the shift towards better compliance with emerging case law and best practices, litigants will increasingly demand e-discovery technologies that are transparent, auditable and potentially supported by experts who can detail how searches are performed. Correspondingly, cases will likely emerge where counsel is found to be negligent after using tools and techniques that have subsequently failed judicial scrutiny.
  6. Solving Colloquial E-Discovery Is Top of Mind: As technology continues to change the way people communicate in business, in the upcoming year e-discovery will need to adapt to the changes in voicemail, text messaging, blogging, instant messaging, Web 2.0 content and other new mediums of business communication, which provide challenges to traditional Boolean search methodologies.
  7. Global Economic Downturn Drives Global E-Discovery: Not surprisingly, the next 12 months will be overshadowed by ongoing economic difficulties and global fallout will continue to propel e-discovery across international borders, heightening e-discovery complexity. E-discovery solutions will need to address privacy and data protection issues in line with international compliance requirements, as well as provide foreign language and in-country processing and review abilities.
  8. Information Stores Will be Mapped: Siloed data sources have long been a problem for corporations. In 2009, with the increasing pressure to sequester, retain, search and produce electronically stored information (ESI) across the enterprise, it will become imperative for companies to be able to map their data universe. Failure to do so will make meet and confer conferences and “inaccessibility” arguments (per the Federal Rules of Civil Procedure) difficult, if not impossible.
  9. Integration Happens Across the EDRM Framework: Tackling the e-discovery process has long required a bevy of differing tools or the use of service providers who manage all the necessary tools for clients. Next year, with the development of e-discovery standards and further adoption of the Electronic Discovery Reference Model (EDRM), more companies will provide integrated solutions.
  10. Information Management Shows Positive ROI: Companies have long attempted to instill information management protocols as overall good corporate hygiene and for compliance purposes. But, now with e-discovery continuing to proliferate virtually unchecked, unmanaged data stores are a ticking time bomb when e-discovery takes place. In the upcoming year, companies will increasingly be able to make a business case for the management and deletion of data as a way to minimize e-discovery costs.

“In 2009 we will see an enhanced focus on tools (in-house processing), techniques (early case assessment) and approaches (cooperation) that speed up and reduce the costs of traditional, brute force e-discovery approaches,” said Dean Gonsowski, vice president of E-Discovery Services, Clearwell Systems. “As enterprises increasingly treat e-discovery as a business process, we will see a shift toward methodologies that are repeatable, standardized and measurable.”

“Organizations are seeing a rise in budget scrutiny and regulatory compliance, while still needing to keep pace with exponential information growth,” said Jonathan Martin, vice president and general manager, Information Management Software and Solutions, HP.  “Bringing e-discovery in-house with a single information governance platform like HP and Clearwell will help organizations drastically cut legal costs.”

About Clearwell Systems
Clearwell Systems is transforming the way enterprises perform electronic discovery (e-discovery) in response to litigation, regulatory inquiries, and corporate investigations. By automating the processing, analysis and review of all electronically stored information, Clearwell enables enterprises to accelerate early case assessments, lower processing costs, reduce review workload, and gain control of e-discovery. Clearwell was ranked a Top 5 e-discovery software provider overall as well as a Top 5 e-discovery provider for processing, analysis, review, and production in the 2008 Socha-Gelbmann Electronic Discovery Survey. For more information, visit www.clearwellsystems.com or read the E-discovery 2.0 blog at: http://www.clearwellsystems.com/e-discovery-blog/.