INSIGHT: E-Discovery Needs to Catch Up With the Times, Remote Work

Major demographic shifts have upended the way companies do business today, and e-discovery needs to reflect these changing times.

A new generation of employees prefers a new set of tools for work, and these tools are beginning to show up in discovery workflows in the form of persistent chats, text messages, emojis, and instant messaging discussions.

It’s time to recognize the permanent workforce shift to mobility as the first choice for many user interactions, and especially in light of the new coronavirus pandemic. Some larger firms are attempting to rewind their policies back to corporate-owned devices due to the high cost of managing BYOD communications, but it seems futile at this point to implement rules that prohibit the use of mobile devices for business purposes.

People constantly use their phones to talk, email, and chat with clients, collaborate with colleagues with tools like Slack, buy and sell financial instruments, and so much more. The smartphone has become mission critical for every generation of worker—not just young people—which makes mobile a primary target for e-discovery.

Taken together, the overlapping challenges for e-discovery are coming into focus:

• Blurred lines between personal and business uses;
• Difficulty preserving content that may have been modified, or preserving content on collaborative platforms like Microsoft Teams which replace familiar file attachments with links to those files instead;
• Conversations peppered with emojis that convey sentiment; and
• The growing use of ephemeral messaging sources, such as WeChat and WhatsApp, that have lacked a reliable method of capture.

Good Governance Should Undergird Shift to E-Response

The ability to effectively govern an increasingly diverse dataset for discovery must be put in place from the outset. Some firms are implementing governance counsels to evaluate the benefits and risks of new communications and collaborative tools before they can be approved for use. This assessment includes exploring native and third-party methods that each of these sources would require if that data was needed for collection and preservation.

Companies should step back and re-evaluate their policies regarding reactive collection and discovery versus proactive retention, given the extensive changes created by new communication and collaboration tools. In short, it’s irresponsible to leave the management of your discovery and governance objectives to a content vendor whose main business is not focused on these risks.

Another related trend involves the rise of artificial intelligence, machine learning and predictive analytics. Due to the proliferation of new content formats and channels, every firm will hit the limits of human inspection of a multitude of unique content sources, many of which do not behave the way email does.

However, AI is only useful for discovery purposes if the data can be normalized and put into context. For instance, for cross-referencing a discussion thread that starts on email, shifts to text messaging, and then links to a collaboration platform.

Proper Advanced Analytics Add Value

If done properly, advanced analytics can add value to these new cloud content repositories by surfacing patterns and anomalies overlooked in the manual review of keywords. Given the current trendlines, it seems that AI and machine learning will continue to supplement applications and content sources of all kinds in the future. For this reason, discovery teams should work to understand how their algorithms will affect these discovery workloads.

Last, it’s important to strike the right balance between the people, the policies, and the technologies. Adopting technology for the purpose of discovering and responding to issues that may reside in multiple content sources is critical, but it will be ineffective if not accompanied by clear policies and training.

Accepted and prohibited use policies should be made explicit, and they should be accompanied by an ongoing training program for employees. Of course, such policies alone can’t do the job without an automated method of enforcement.

Companies need to move past the old mindset of “the way we’ve always done things here before.” Growing concerns about the misuse of data and devices pose a real challenge not only for litigation, but also for responses to regulatory inquiries, HR violations, and other internal investigations.

In the worst-case scenario, this situation can even lead to potential exposures to data security and privacy breaches. For all these reasons, the time has come for e-discovery efforts to be transformed into a more effective approach for e-response.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Robert Cruz is vice president of information governance for Smarsh. He has over 20 years of experience in information governance, discovery, cost and risk reduction.