Data Hops and Digital Chaos Call for New Discovery and Investigation Approaches

Carolyn Casey

Jul 27 2016

The other week I moderated a panel for AccessData at the Masters Conference for Legal Professionals in New York City. It’s always awesome to be in New York, especially when it’s summertime, sunny and not humid.

True to form, the conference organizers orchestrated a high-caliber event, with great thought leadership sessions and opportunities to network with old and new e-discovery friends. Great to see Mary Mack of ACEDS and Ari Kaplan of Ari Kaplan Advisors!

Moving Towards “Connected Digital Discovery”
AccessData hosted a lively panel on moving towards a more “connected digital discovery” process where there is less data migration, less security risk and more efficient, simpler technology workflows.

Today, IT and digital forensics professionals collect data and analyze it in a forensic solution, store it in the solution or somewhere on the network or their consultant stores it at their location. The data is then migrated to an early case assessment and culling tool and processed for use by the in-house legal team. In turn, this data gets migrated, reprocessed and stored in the law firm review platform. This creates multiple points where data could be leaked or breached, as well as multiple processing costs and script writing for the data migration. Some mix of these workflows occurs throughout e-discovery processes with corporate stakeholders from IT, forensics, HR, compliance and legal, along with their outside service providers including outside counsel, forensic consultants and e-discovery service bureaus.

There’s got to be a better way. All this duplication of data makes information governance professionals cringe and eludes common sense about efficiency and risk management.

Organizations are now looking to simplify this process and integrate their “digital discovery” technology and workflows—whether it’s forensically acquiring emails from a mobile phone in a human resource (HR) investigation or searching the enterprise for responsive documents in large-scale litigation.

The Chaos of Enterprise Digital Data
The panel conversation started off with the recognition that digital information inside corporations is a chaos of structured and unstructured data, cluttered with emerging data types such as social media, sharing/collaboration apps and the Internet of Things. Organizations are overwhelmed with protecting this ocean of data from cyber-threats, building incident response protocols and complying with growing regulations. There’s no doubt that in today’s digital enterprises, internal and regulatory investigations and litigation processes are fraught with data complexities that breed inefficiency.

Panelist Perspectives
Martin Gomberg, a global information governance consultant, emphasized how efficient investigations start with good information governance. Good governance is about knowing what data is consequential, what you have, where it resides, who has access to it, and what is needed to comply with global privacy laws such as Sarbanes-Oxley (corporate governance), the Health Information Portability and Accountability Act (HIPAA) (health information privacy) and Gramm- Leach-Bliley (financial information protection). Good governance also lays the foundation for rapid data collection and analysis during investigations and discovery. Recent stepped-up regulatory enforcement is motivating enterprises to get on top of their data, according to Gomberg.

Gail Gottehrer, Partner, Axinn, Veltrop & Harkrider LLP, agreed that there is risk inherent in each of the data hops in typical discovery workflows, especially given the fact that law firms generally lag behind their clients in terms of security. The FBI raised concerns about law firm cyber-security several years ago, with recent public attention growing after the Panama Papers scandal and the revelation of recent large New York law firm breaches. Particularly with extremely sensitive data, Gail now sees companies keeping this data behind the corporate or vendor firewall, and giving their law firms access to it via a secure portal to conduct review. She also reminded the audience that many small and midsize law firms and businesses are not as sophisticated about e-discovery knowledge and security protections compared to larger law firms and companies.

Sharika de Freitas, Sr. eDiscovery Manager at Viacom, commented that there are still a lot of data re-spins—re-collection, re-processing and re-hosting—in organizations. The goal should be to have integration and interoperability across technology to reduce or eliminate data hops. Sharika advises HR, compliance, risk management and technical teams to collaborate with the legal team early in their investigations. “We’re good at data collection, data management and analysis in legal because of all the experience with e-discovery.” Getting on the right track early is key—“It’ll probably end up in litigation down the road, so let us help you do it right up-front to avoid later problems.”

Anthony Lowe, Associate General Counsel and Managing Attorney, Litigation Operations Group at a financial institution spoke of the importance of the legal team being part of cyber-breach and incident response planning and execution. “The general counsel will want to know quickly if any legal information or legal hold data has been compromised so they can take appropriate action to meet discovery requirements.” Anthony encourages legal teams to take part in cyber response planning. Make sure legal’s role is defined in the process, and that what legal wants to know immediately is clearly articulated in the plan.

He added that he has built his internal legal operations to a point where e-discovery spend is 10% of what it was in 2010.

This is a startling metric that challenges law departments to continue to assess inefficient investigative and discovery technology portfolios and workflows. Those long saddled with hodgepodge technology stacks, continual risky data hops and expensive, time-consuming data re-processing will want to change their approach. Moving towards “connected digital discovery,” where investigative and litigation data is acquired, processed and analyzed in a single platform, is something to consider for your technology planning.

Carolyn Casey, J.D., is a product and marketing strategy consultant for legal technology companies. She is a veteran of three e-discovery companies and three Big Law firms.

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