You’ve been served. The request for information asks you to supply all electronically-stored information that is relevant to the case. This includes writings, drawings, graphs, charts, photographs, sound recording, images, other data and data compilations on email, documents, voicemail and audio/video files. That includes data from social media, smartphone apps and instant messaging services. Under the US Federal Rules of Civil Procedure, you’ve got to respond within 21 days and have all the information ready to hand over within 99 days.
You employ 20,000 staff. Lawyers charge by the hour and they don’t come cheap. How would you respond? How robust is your eDiscovery strategy?
Electronic discovery, or eDiscovery, is the process of tracing, tracking, acquiring and examining electronic data in order for it to be used in legal proceedings. Solutions currently being offered include Legal Hold, Early Case Assessment, Data Processing, Technology-Assisted Review and Data Production. Those types of solution can form part of wider packaged services offering consultation, training and implementation support.
Clear thinking
Clear thinking is key, and that can often be a problem when responding under pressure. As Dan Threlfall, an eDiscovery specialist in Global Relay’s audits and eDiscovery department points out, the very need for an eDiscovery exercise arises because of a crisis point – a subpoena or the announcement of an investigation.
Threlfall and Glenn Rogers, Global Relay’s director of audits and eDiscovery, emphasize three key considerations that should inform responses.
- Don’t panic – “it never results in a good strategy”;
- Talk to the professionals – people who know what they are doing can help; and
- Be organized.
“One of the greatest fears around litigation, and one that everyone can relate to, is not being able to produce all of the data that is requested,” says Rogers. “Firms always need to remember to apply and manage their legal holds on their archived data. Have a checklist and make sure it is followed and properly reviewed to make sure it is complete.
“There is nothing worse than looking for data and realizing that the firm has had an ongoing retention and deletion policy and that has included certain data that was responsive to their litigation requests. Sometimes these legal issues can linger for years, and what may have been available two years ago may not still be available today if the proper legal holds weren’t implemented.”
“The whole concept of what or who is a custodian is changing.”
Glenn Rogers, Director of audits and eDiscovery, Global Relay
The other danger is people who don’t know what they don’t know. Or who make assumptions that lack credibility. We heard of one case involving a small firm in which the CEO copied all his emails to a personal friend who was an attorney and then claimed they were communications subject to privilege and so did not need to be submitted. The regulator disagreed and took punitive action.
Technological change is driving new behavioral norms, so instead of people fitting in with systems, we’re seeing business having to adjust to how individuals are working and communicating. Especially against the backdrop of growing regulatory mandates.
“The whole concept of what or who is a custodian is changing” says Rogers as we discuss the rapidly shifting landscape in which eDiscovery services operate.
The fact that employees use the same widely-available systems and technology to discuss work as they do to communicate about personal issues shouldn’t be surprising. Especially in a post-pandemic environment in which working patterns have changed and the lines between personal and professional are blurring. Businesses need to factor the use of these channels into their compliance strategies. And that means dealing with the same issues of ownership, liability and control facing anyone operating in the digital world.
Growing demand
The growing demand for eDiscovery services was highlighted in a recent report from Advanced Market Analytics which specializes in B2B market research for Fortune 500 companies. It identified an increase in lawsuits, the digitization of information and a growing realization of the need to secure information as the primary market drivers, and noted a particular increase in adoption of eDiscovery services by the government sector.
FMI Research estimates the current value of the global eDiscovery market to be $9,529m, but predicts this will almost double to $18,067m by 2030. The software segment of the market held a 55% share in 2019, but the services segment is forecast to increase 2.4x over the period to 2030.
And just as the rapid proliferation of new communication channels has presented fresh challenges to those who need to store and search information, so too will increasing activity in the Metaverse.
Global Relay, as an archiving service, often found itself at the start of a chain of companies that prepare and interrogate data and launched its Discovery-as-a-Service (DaaS) product in response to the questions customers were asking.
“It began around 16 years ago,” says Rogers. “Our data services team was importing and exporting data and we were getting questions from customers about what they should do if they got subpoenaed. So we hired people such as Dan Threlfall who had a legal background and we built a department around what our customers needed.”
Each case has its own unique characteristics, so there’s no template response that can be implemented. What is important is that whoever is being investigated is able to identify what does and doesn’t need to be submitted as quickly and as efficiently as possible. Legal hours are expensive, so simply handing over everything will rack up costs as well as slow down the process. But holding material back can also lead to problems, hence the need for an expert service that can identify all material that is relevant and indicate why other material is not.
“In the overall costs of a legal case, the cost of a professional eDiscovery service is a fraction of the overall budget.”
Paul Dean, Senior Director, Product, Global Relay
“In the overall costs of a legal case, the cost of a professional eDiscovery service is a fraction of the overall budget” says Paul Dean, Senior Director, Product, at Global Relay. “The cost of Global Relay doing the extraction from the archive into a case management system is small in comparison to the overall legal case, but it’s also about risk. Using Glenn means that less data is handed over that is more relevant. So costs are down but also so is the risk of the regulator finding other bad stuff.”
He identifies four aspects of a successful eDiscovery service – completeness, accuracy, relevance and speed. Those four factors can free up in-house legal teams to deploy resources more effectively to deal with other tasks arising from the case, and also avoid the chance of poorly-executed eDiscovery leading to sanction or even reputational challenge.
Threlfall points out that, for example, if a business under investigation incorrectly deems a particular set of information is irrelevant and does not submit it, that can appear to be an attempt to conceal information. Having a third party with no skin in the game take the decisions makes the process more robust.
Evolving process
The unique nature of each case also means the process of eDiscovery is one that evolves, Rogers says. “We may get a list of users and keywords and then run searches on the number of messages found that feature particular individuals or keywords. If a term returns big numbers, we run the search in conjunction with another term or factor.” The emphasis is on ensuring the eDiscovery process returns no less and no more than is required. And remembering “the biggest thing for us is confidentiality”.
While Global Relay is not the only company offering eDiscovery services, Rogers believes its team’s track record of over 50 years in the business of providing archiving services gives it an edge. “With existing customers, we already have all the information needed, and we know where it is and how it’s organized,” he says. He also points out that “one of the nice things about the Global Relay Archive is that you have all the tools to do the search yourself”. But, and this can’t be over-emphasized, the cost in both financial and reputational terms of doing it yourself and getting it wrong can be very high indeed.
We’ve already mentioned how changing technology and habits have shifted the conversation around eDiscovery. But what trends are likely to develop in the future? Rogers and Threlfall are in no doubt that AI is going to be the game changer, because it offers the opportunity to model situations.
Dean says: “AI gives us a more nuanced idea of content, especially identifying potentially privileged content.” This will improve the process of early case assessment, especially if firms can take a starting template of a ready-made model and adjust it to meet the particular needs of a specific case. And AI will become increasingly important in dealing with the growth of voice messaging.
Data explosion
Statista Research estimates the amount of data created globally by 2025 will be 180 zettabytes. One zettabyte is equivalent to a trillion gigabytes, but if you want a more easily digestible figure, eDiscovery expert Jordan McQuown quotes IDC research from 2020 that says: “The amount of data created over the next three years will be more than the data created over the past 30 years, and the world will create three times the data over the next five years than it did in the previous five”.
Data creation reached a new high in 2020 thanks to the pandemic, and device proliferation will ensure that trend continues. Statista estimates that only 2% of the data produced and consumed in 2020 was saved into 2021, and predicts demand for storage will grow at a compound annual growth rate of 19.2% in the period to 2025.
That growth in data comes alongside a growth in the complexity of data, and a growth in the complexity of technology. And all of this increases the demands on people’s time and expertise. If you haven’t got a well-thought-out eDiscovery plan in place, you’re going to need one.