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2010 eDiscovery horizon

Bob TennantWith the explosion of electronically stored information (ESI) over the last year, there is no question that organisations will continue to grapple with the concept of information risk throughout 2010.  The UK’s increasingly stringent regulatory environment has already picked up steam during Q1 following the ongoing recall issues faced by Toyota, and with the FSA’s latest insider trading investigation gathering momentum it’s clear that the situation is only set to intensify.  Add to this concern the increased adoption of new technologies such as Web 2.0 tools, cloud computing, unified communications and virtualisation within the organisation and the eDiscovery landscape faces a unique set of challenges that will undoubtedly keep legal professionals working at full capacity for the foreseeable future.

 

A hot topic in today’s IT climate is the interaction between litigation and investigation readiness and the recent corporate interest in moving active information to offsite ‘cloud’ storage.  An increasingly common practice in many organisations, cloud storage raises important questions for litigation support professionals as to how quickly information can be returned in the event of discovery, subpoena or regulatory request,  the format in which it will be returned,  and whether data will be fully searchable while stored in the ‘cloud,’ ensuring that only responsive information is returned.  To be prepared, at the very least, litigation support professionals  must have input into service level agreements associated with these types of arrangements, and may even need to test cloud technology with mock regulatory inquiries.

Regulated companies, such as those in the financial services, biotech and pharmaceutical, oil and gas, and telecommunications sectors will continue to take a cautious approach to these technologies on account of eDiscovery and compliance concerns.  However, 2009 saw the introduction of more corporate and legal involvement in the IT evaluation processes in order to assess the impact of new technologies on eDiscovery, compliance and retention.  This trend is likely to continue throughout 2010, with many organisations establishing ‘IT/Legal liaison’ roles with a specialised knowledge of both technology and legal processes, to facilitate internal discussion, consensus and cooperation between each department, as well as increasing their available budget.

Legal Investment in eDiscovery

In 2010, many law firms will also move from investigating to standardising on an eDiscovery platform – a shift driven by the need to provide clients with cost-effective, competitive, repeatable and defensible eDiscovery processes.  Such a shift has been enabled by the maturation of several eDiscovery applications that have expanded their functionality to include all phases of the eDiscovery process, from data processing to sophisticated search to full production, making the need to integrate components from different vendors unnecessary.

Law firms will also require eDiscovery platforms to provide quality assurance, process documentation, reporting, security, and auditing

Law firms that invest in an eDiscovery platform with differentiating technology – such as integrated conceptual search, support for non-linear review and email analytics – will be able to offer their clients more effective, higher value and lower cost eDiscovery services alongside their traditional legal services.  These changes in technology, combined with the corporate demand for more cost effective discovery management, are certainly changing the dynamics of the litigation services market.

Law firms will also require eDiscovery platforms to provide quality assurance, process documentation, reporting, security, and auditing in order to support their own investment and ensure that their eDiscovery programme is repeatable and defensible.  This means that litigation support professionals will be called upon not only to help evaluate and run these systems, but also take an expanded role in developing ROI models for their clients, fine-tune the best practices around the technology, and construct reports to document the process and the results.

Targeted data collection & advanced search tools

Taking control of an organisation’s growing data store is undeniably a major challenge – businesses are renowned for storing too much information, simply because they are unaware of what data needs to be retained.  Experts have begun to not only question, but actively oppose the practice of forensically imaging every hard drive with data that might be responsive to a lawsuit or regulatory inquiry—doing so results in the additional risk of storing significant amounts of data in multiple discoverable locations.  In addition the costs of storing the volume of these full hard drive images is significant and further associated with a disposal management problem.  In the majority of cases, only a small percentage of data collected is ever responsive.  Nonetheless, the decision to destroy information is extremely difficult, as data in holds pertinent to one case have to be cross-referenced with those from other cases to determine whether further preservation is required.  This exercise is not easy, especially for those organisations without a centralised legal hold system.  When the process is complete, most companies find that they are both over-collecting and over-preserving data, --and hence also over-spending.

This realisation will prompt more organisations to adopt tools that enable them to identify relevant information down to the individual file before the preservation process.  Traditional keyword search is insufficient for this task, so legal professionals will turn to products with advanced conceptual search technology to enable far greater precision and recall in search results.  Furthermore, with conceptual search, litigation support specialists can perform searches based on a host of parameters such as date range, email domain, file type and email sender/recipient.  The end result ensures that only data that is truly responsive to a particular matter is preserved, reducing the amount of information that might need to be reviewed downstream.

A new breed of legal professionals

In an effort to decrease the amount of downstream data within the enterprise, litigation support professionals will also pay close attention to preliminary information management technologies such as automated categorisation. The distinction between records and knowledge management, information access, legal and compliance systems has blurred during the past few years, as have the roles of the professionals supporting these tools.  With many organisations keen to better manage their information, the education of litigation support professionals around information management tools and techniques will gain further momentum in 2010. 

The result will be a new breed of legal professional: a hybrid litigation support and information management resource

Recent discussions at both the Legal Information Technology Conference (LIT-CON) and ILTA indicated that the gap was closing between information management professionals and litigation support professionals, with both camps eager to learn more about what their counterparts were doing and how.

The result will be a new breed of legal professional: a hybrid litigation support and information management resource grouped under the information risk and governance remit.  These practitioners will act as technical experts on eDiscovery platforms, as well as understanding litigation support issues such as data review and production and information management technology and processes.  All that remains to be seen is which technologies will be able to support these professionals in developing effective information risk management programmes.

End-to-end eDiscovery horizon

The sheer volume of ESI – made up of a multitude of different information types and sources – that organisations have to contend with is making it more difficult than ever to effectively control and protect information, ultimately making it harder for many organisations to deal with eDiscovery requests in today’s business climate.  As organisations across all sectors of the UK continue to find themselves subject to a growing number of these investigations – both internal and external – and the associated eDiscovery requests, there is no question that preparation is key and should be a major part of any enterprise data management strategy over the coming years.  When it comes to implementing these strategies in corporations and law firms, end-to-end eDiscovery systems – staffed by the industry’s new breed of practitioner with expertise in both technology and the law – will be paramount to ensuring companies can action these eDiscovery requests promptly when they hit.

Bob Tennant is CEO of information risk and enterprise search specialists Recommind, a position he has held since late 2001.

 

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