Recently I spent some time with a Kroll forensic expert who is speaking for the Utah State Bar today. We talked about various trends in e-discovery and agreed we were both seeing three noteworthy trends.

1. Poor/Sloppy/Lazy e-discovery practices by lawyers are determining case outcomes.
   Traditionally discovery practices have always impacted case outcomes, but given the complexity of electronic information, the impacts of poor practices are becoming dramatic. A simple notice to preserve evidence can lead to catastrophic client consequences.

2. Most lawyers are focused on defending e-discovery requests right now.
   In an e-discovery seminar last week in Utah a presenter asked how many lawyers in attendance were there to learn about defending (vs. attacking) - every hand went up. This means instead of assertively representing clients via effective e-discovery, lawyers are playing catch-up and CYA on the issue. Lawyers appear to be afraid to assertively go after electronic evidence, because they know they can't defend the same requests.

3. The amount of available electronic information in discovery is so voluminous; humans can't possibly review it all.
   This means lawyers need to learn how technology can help them screen and review electronic information. What has happened in some recent circumstances is that lawyers release privileged information to opposing client under protective agreements, meant to preserve privilege. Although this may work in the short run and for a specific case, in the long run it may well waive privilege for other matters or in other circumstances.

We concluded in our conversation that lawyers really need to get up to speed on e-discovery issues (with the help of their bar associations). Failure to understand this critical issue could mean harm to clients and ultimately their practices.