It’s a busy time for corporations and law firms monitoring eDiscovery and information lifecycle trends, and that’s sure to continue in 2020 and beyond.
Innovative Discovery (ID) recently hosted a webinar to discuss trends and hear from industry experts about preparing for what’s ahead. Representatives from Goldman Sachs, Seyfarth Shaw LLP, Gannett Media Corp., and ID first identified key trends that took hold in 2019:
1. Cybersecurity and the growing prevalence of breaches
2. Acceptance of analytics tools vs. Artificial Intelligence
3. Emerging and complex data types
4. Increasing use of mobile and BYOD as workplace communication
It’s important to be aware of these four trends and understand how they are shaping eDiscovery and information lifecycle going forward.
Preparing for what’s ahead
1. Forced use of analytics and technology assisted review (TAR) by Plaintiffs
Some parties are leveraging “Offensive TAR” and asking courts to require the use of it. This goes beyond common practices, in which courts allow the use of TAR, and perhaps encourage it, but typically do not require it. The big question is whether courts will move in the direction of requiring TAR in eDiscovery case law. If you find yourself in one of these battles, consider partnering with an expert in the use of actual keywords or linguistics.
2. Next-gen collection tools
Next-gen collection tools are able to preserve data while helping to prepare for other eDiscovery and information lifecycle trends. Key tools to be familiar with include Axiom, Heureka, eDiscovery in Office 365, Text IQ, Brainspace, and Onna.
Given the newness of GDPR and CCPA, their unintended consequences are still unclear. Corporations and law firms should be monitoring both existing and impending privacy regulations and legal compliance programs. Many organizations are struggling with the management of customer data and, in the coming decade, privacy is only expected to grow in importance.
4. Global reach further increases complexity
Amid ongoing migration to the cloud, it’s easy for both criminal and civil cases to become international in scope. Cross-border investigations are increasing the complexity of privacy and compliance.
5. Technology vs. People
As technological advances continue, organizations must grapple with how to mesh people and technology. Collaboration programs, in particular, have become a hot button issue. Will employees adopt them wholeheartedly or will they forgo the use of corporate-approved platforms and return to off-channel communications?
6. Upcoming acquisitions
Regardless of industry, cybersecurity should be part of the due diligence involved in any deal. The information about a breach involving the data held by a seller can be incomplete at the time of a deal. Acquirers could be buying a problem, and it could be a substantial one.
Four ways to prepare
1. Enhance Information Governance (IG) programs to prepare and implement policies
Data types are increasing, data privacy rules are coming in waves, and requesting counsels are aggressively using discovery to secure large swaths of data. The best thing for a corporation and their outside counsel to do is develop an IG program with all stakeholders involved, including technology, legal, and compliance.
2. Identify and classify non-traditional data types
Start by asking, where is our data and what do we have? These are big questions and ones that many companies are struggling with. It’s possible to get answers by creating a functional data map and managing the flow of data as it enters. In 2020 and beyond, there will likely be a movement toward classifying unstructured data that’s existing on network shares, emails, and other locations outside of traditional databases. By getting a handle on this data, organizations can respond more quickly to data subject access requests and data breaches.
3. Develop bespoke workflows for your organization’s risk profile
Create workflows within your organization that are repeatable, verifiable, and defensible. A carefully structured process allows for actionable decisions on data in a rapid fashion.
4. Consult with experts on what others in your industry peer group are doing
Find out how peers are dealing with their data and how they are addressing problems that you have yet to encounter. Industry experts who have assisted similar companies can be a helpful resource. Developing an information governance plan and identifying workflows and types of data is critical in the 2020 decade.
These issues are only growing in importance, so an investment of time and resources now will pay dividends down the road.
New eDiscovery and information lifecycle trends will emerge in 2020, leaving organizations to either fall behind or seize the opportunity to thrive in an evolving environment.