Five Buzzworthy eDiscovery Trends Overheard at LegalTech 2018
Every year, the legal technology community gathers at the New York Hilton Midtown to see what’s new in the industry, catch up with colleagues, and visit with old friends. For those of us who’ve been in the industry for 10+ years, it’s a bit like a high school reunion, or a nerdy summer camp.
This year saw thousands of attendees, hundreds of exhibitors, and dozens of speaking sessions. Whether you cruised the exhibit hall, sat in on former U.S. Secretary of Homeland Security Jeh Johnson’s keynote address, or participated in the smaller speaking sessions, workshops, or demos, every legal practitioner in attendance came away with action items to take back to their teams at home.
As usual, several themes emerged over the course of the week in New York:
1. Extending the Electronic Discovery Reference Model to the left
While information governance has been an official focus for electronic discovery practitioners since 2014, when it was officially added to the electronic discovery reference model (EDRM), forward-thinking legal practitioners are exploring ways to automate and streamline the cumbersome process of mapping an organization’s entire body of data.
Promising technologies include AutoClassification, predictive analytics, and document data mining. All three can be applied at any stage but are especially helpful for information governance, records management, and eDiscovery. The proper deployment of these technologies can result in dropping eDiscovery risk to near-zero – because when risk is identified and mitigated early, litigation can be avoided entirely.
2. Extending the EDRM to the right
With all the focus on extending the EDRM to the left – ie, focusing on information governance – extending services to include actual trial presentation is a real opportunity. The presentation of materials in the courtroom has evolved from the days of poster board and glue-sticked graphics. These days, courtroom legal practitioners can use tools like TMX to smoothly extend the EDRM all the way through to trial. TMX delivers the ability to maintain the exact same document IDs all the way forward to bundle creation for packages presented by counsel in court – for a completely seamless experience.
3. The human factor in eDiscovery, data breaches, and beyond
Hackers are now adept at exploiting the human factor to gain access to sensitive corporate data. We’ve seen this play out in high-profile data breachafter high-profile data breach. What we’ve learned from these breaches is that while ironclad security measures are important, the human factor is often overlooked. Social engineering – a highly-effective type of hacking that uses deception or manipulation to obtain confidential information that relies heavily on direct human interaction – often tricks people into breaking normal security procedures.
Since law firms often are close guards of their clients’ most sensitive data – housing data pertinent to whole litigation portfolios – they’re often prime targets of hackers. Law firms should get serious about training their staff to recognize and flag social engineering attempts, and ensure that they’re not the weakest link when it comes to data breaches.
4. The importance of communications in eDiscovery program rollouts
One of the most overlooked parts of a new eDiscovery program rollout is communication. It’s easy for legal practitioners and technologist to focus on the technical aspects of a new piece of eDiscovery software, or the legal ins and outs of a particular case. But even the best software paired with the best legal strategy can fail when it’s not backed by a solid communication plan – especially when you’re making systemic changes to the way your company manages the eDiscovery process.
At its core, an eDiscovery communication plan helps to reduce the risk inherent in all litigation transactions. When everyone who touches the data involved in an eDiscovery project is clear on data handling protocols and their specific roles as they relate to the project, risk is inherently reduced. A clear communications program means there’s less overlap in roles and less opportunity for error. To an end corporate client, that means their exposure is reduced. To the law firms involved in eDiscovery projects, that means they can deliver better, seamless service to their clients, and THEIR exposure is reduced. And for us at Epiq, it’s part of delivering the kind of hands-on service our clients expect.
5. The value of data in eDiscovery and risk mitigation
Data analytics are vastly underutilized in the eDiscovery industry. Analytics are incredibly useful tools for use within matters and savvy practitioners would do well to apply them more universally. What’s even more interesting, however, is the potential that data analytics have to deliver insights acrossmatters. Comparative analysis across matters using one discovery approach vs another discovery approach could deliver near-complete accuracy in assessing cost and risk profiles of current or future matters. That’s of tremendous value.
Another area where data can be valuable is in identifying, measuring, and monitoring risk. Savvy eDiscovery practitioners can ask their vendors to perform a risk profile analysis on data that’s been collected for past matters and deemed non-relevant in order to identify – and take action on – areas of potential risk exposure. This is the best way to reduce discovery cost – by avoiding litigation in the first place.
Leaders that choose not to use available data analytics tools are knowingly exposing their organizations to an unknown amount of risk. Forward-thinking legal, compliance, and risk professionals have a duty to both stay up to date with available technology, and deploy tools smartly to reduce their organizations’ risk. Click here to watch a video about data analytics tools available to legal technology practitioners today.