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Why eDiscovery's Explosion Doesn't Mean 'Collect Everything'

By Casey C. Sullivan, Esq. | Last updated on

The eDiscovery market is undergoing a major boom. The growth of the eDiscovery industry, estimated to triple in size before 2022, is being fueled primarily by the growth of massive data collection. From corporate instant messaging, to social media, to the Internet of Things, more and more of our information is being electronically stored and sifted through during litigation.

But, some eDiscovery industry leaders are starting to question the "collect everything" mindset, arguing that excessive data collection and storage is expensive, impractical, and unnecessary.

Industry Growth Propelled by Data Growth

A study by Transparency Market Research predicted that the eDiscovery market would grow 16.2 percent annually in upcoming years, increasing from $5.5 million in 2013 to $21 million by 2022. Currently, government and regulatory agencies are the largest users of eDiscovery services, making up half the market globally, according to TMR. But that is expected to change as increases in electronically stored information make eDiscovery a more essential part of all forms of civil litigation.

And, my god, is data collection growing. Experts expect a more than fourfold increase in data generation by 2020, according to CSC. That's an increase from 7.9 zettabytes today to 35 zettabytes (a zettabyte is one trillion gigabytes) five years from now. The growth of data sources such as the Internet of Things promises an almost endless increase in the amount of data your devices, wearables, and smart toilets are collecting and storing -- all of which can become evidence in litigation.

Data as Corporate Burden

All that data storage isn't necessarily a good thing. For one, it raises significant privacy concerns, as companies gather vast amounts of potentially sensitive personal data on their employees, clients, and customers. That data can create international compliance difficulties, as the end of the E.U.'s U.S. safe harbor data privacy program recently showed. The proliferation of sensitive information can also make corporate data breaches even more costly.

But privacy and security concerns aside, excessive data collection also creates major litigation burdens. The production and archival of electronically stored information unsurprisingly creates a disproportionate burden on responding parties in eDiscovery, according to the Australian Law Reform Commission.

Throw Your Data Out?

And that massive data storage might not be necessary. Brad Harris, of the eDiscovery company Zapproved, recently wrote in Today's General Counsel that companies need to break free from the "collect everything and sort it out later" mindset. Holding on to all data in an attempt to avoid spoliation and potential sanctions is the wrong strategy, leaving legal teams with too much data to cull through. He suggests, among other approaches, creating effective information governance policies that preserve the wheat while discarding the chaff.

Would a more nuanced approach to data collection undermine the growth of the eDiscovery industry? Probably not. After all, it's those same eDiscovery companies who are marketing more refined data collection and storage programs.

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