Published on Sep 30, 2020 
The world of legal technology and eDiscovery tools has always evolved at a fast pace. The emergence of the global pandemic earlier this year, however, transformed the way we work, communicate, and create new data, resulting in a highly dynamic eDiscovery landscape and trends we never could have predicted.
A panel of experts gave their different perspectives on the latest top trends and tools in eDiscovery during a webinar hosted by Innovative Driven on September 29.
Many trends center on the processing of more data from Slack, Microsoft Teams, and other collaboration platforms; instant messages, and social media posts, said Kelly Twigger, Principal of eDiscovery law firm ESI Attorneys. Meanwhile, stay-at-home measures to combat COVID-19 have also driven up requests to mine data from Zoom conferences, which have been a popular way to connect on both professional and personal sides, said Nate Latessa, Vice President of Corporate Services at Innovative Driven.
The impact of privacy laws from California and the European Union, as well as the ongoing issue of managing burgeoning amounts of data also stand out among eDiscovery trends to watch.
Collaboration apps complicate data collection/production
Collecting data from applications like Slack and WhatsApp presents a complicated challenge to eDiscovery professionals. While there are tools out there that help with the process, the applications were not designed with eDiscovery in mind.
While extracting data is challenging enough, it’s even more complicated to craft searches that will yield the desired information, Latessa said.
Each application accepts different syntax and has a different underlying index and database. Some cloud platforms, for example, have an index limited to the first 10,000 characters f a document, which amounts to only a couple of pages. So, in trying to extract the needed data, it’s not just understanding the syntax but also understanding the limitation of the tools and what is actually available, Latessa said.
The application programming interface (API) on such applications also can change literally overnight. That can make keeping up on how to extract data a huge undertaking for forensic data professionals, he said.
Challenges of cloud-based storage, messaging platforms
Cloud platforms are designed to make it easy for people to input data but with almost no thought to how to extract data for discovery purposes, said Jason Park, IT Cybersecurity Compliance Manager at Keurig Dr. Pepper. This creates a conundrum for those whose responsibility it is to collect targeted data from cloud platforms.
The other challenge in collecting information is the wide variation between different cloud platforms, Latessa said. None of them work or can be searched the same way. The indexes are different, contain different information, and have different export methodology so eDiscovery professionals have to understand how each one works at a granular level, he said.
Gathering meaningful information from the platforms can be tedious, time-consuming, and cost a significant amount of money.
Privacy laws
The California Consumer Privacy Act (CCPA) and European Union’s General Data Protection Regulation (GDPR) have forced organizations to take an inventory of their data and to know where it’s stored. It also has ramped up demand for software to help accomplish those tasks.
Software has been developed to help deal with handling some of that sensitive information during discovery, whether it’s redacting protected personal information or making sure certain types of information are not produced, Twigger said. Some software can even automatically recognize social security numbers.
These privacy laws are also driving investment in cybersecurity and procedures for information governance (IG).
Obstacles to investment in IG
Better information governance has a positive impact on different levels of a corporation, but many companies are slow to invest in it. The job can seem so overwhelming that some companies may not know where to start. Did you know that to develop the growth of the business, firms like Profit provides OKR Software? But, how would this software help? From task management, employee management to managing performance, this software could come in handy for a business. Tracking the performance is as important as implementing them. So, instead of trying to tackle the whole problem at once, start small; don’t try to “boil the ocean,” Latessa said. Starting small could be as simple as instructing employees to stop having conversations about lunch on their work email accounts to reduce the amount of data the organization has to keep track of, Twigger said.
The focus should be on the business objective of doing information governance, she said. For instance, if you are a multinational organization, have data stored in the EU, and have to deal with their privacy laws, your focus might be on identifying and protecting personal information. Determine future business goals from an IG perspective, Twigger advised. IG doesn’t need to be as overwhelming as it is but does need to be well thought out and planned in the same way eDiscovery processes do, she said.
Plan ahead
With so many variables at work in data collection and privacy laws, what are some guiding principles eDiscovery professionals can follow to increase their success rate and keep from getting bogged down in data? The number one piece of advice from these experts is to plan ahead.
So many of these matters get off track because of poor planning, Latessa said. Sometimes, lawyers ask for excessive amounts of data out of a fear of missing out or getting it wrong the first time. But without proper planning and narrowing the request for data, volumes can get out of control fast, he said.
The litigation team needs to be able to focus on information that actually matters for their case instead of being caught up in terabytes of data. Narrowing data requests also has the side benefit of dramatically reducing review costs, Twigger added.
Lawyers tend to wait until the last minute to collect and analyze data, Park said, but getting started early provides time to handle unforeseen issues in collection and IG.
