Over the past four years, I have seen a surprising number of new software products enter the eDiscovery market for identifying, collecting, processing and reviewing electronically stored information (ESI). So far, I have counted more than 70 new eDiscovery-related software products. When a company invests in a new in-house eDiscovery technology, the legal department should always inquire about whether the software has ever been challenged in a court proceeding because there is a possibility that they will need to defend the technology in court.
I am starting to see a trend of attacking the technology used to perform the collection and processing as a way to distract lawyers from the merits of the case. Unchallenged products are highly susceptible to this because the collateral attack on the technology usually focuses on raising doubt about the software's accuracy and reliability.