Our 2016 Resolutions for eDiscovery, Part 2

Last week, we discussed four eDiscovery resolutions that counsel should make as they kick off 2016. In this blog, we offer four more pearls of wisdom for counsel to consider as they tackle the New Year.

5. Find ways to economize in discovery without sacrificing defensibility.
No longer an “unproven technology,” according to U.S. Magistrate Judge Andrew Peck in the 2015 case Rio Tinto PLC v. Vale S.A., technology-assisted review (TAR) is one of most efficient ways to rapidly review a morass of data. In the opinion, Judge Peck commented on the progress TAR has made in the last three years, asserting that “it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it.” He continued, “…the technology industry now considers predictive coding to be widely accepted for limiting e-discovery to relevant documents and effecting discovery of ESI without an undue burden.” For high-volume and other types of matters, counsel should as well, if they want to rein in their litigation budget.

6. Stop putting information governance on the back burner.
For too long, organizations have agreed that information governance should be an imperative without taking concrete steps to make a dent in their information stores. Now, with the amendments to the Federal Rules clarifying the standard for the imposition of sanctions in the event evidence is lost, organizations should feel empowered to take control of their data. It is in their best interest to do so given multiplying sources of data, increasing privacy and other restrictions on its use, and the rising risk of cyber breaches. eDiscovery techniques, such as TAR and deduplication, have too long been overlooked as a means of sorting meaningful from obsolete data, and it is time organizations invest in—or make the most of their investment in—technology or technology-enabled services to limit (and manage) their data stores.

7. Shore up data security.
With new laws such as the Cybersecurity Information Sharing Act of 2015 signed into law in December, cybersecurity is no longer just an IT issue: it affects every aspect of an organization. Counsel must spearhead efforts to ensure executives prioritize preparing for a potential data breach and inform employees of measures to take to safeguard their data. The companion to data security is data privacy, and counsel (along with Chief Privacy Officers, IT, compliance, risk and business line executives) are taking a closer took at how to keep their employees’ and clients’ sensitive data from being disclosed. Among these steps include more rigorous scrutiny of eDiscovery vendors’ security mechanisms as well as cloud-based providers.

8. Leverage Big Data analytics to identify and manage risk proactively.
Organizations, particularly ones whose tentacles reach around the globe, may find it difficult to keep their finger on the pulse of every potential hazard facing their company. Fortunately, Big Data can make it easier to mine for potential risks, if you know what to look for and how to look for it. Organizations that do not use analytics tools to mine their data may subject themselves to risk, particularly where third-party suppliers are concerned. This is especially true now that the Justice Department has added staff and is focusing on high-impact Foreign Corrupt Practice Act cases. Counsel are starting to investigate advanced techniques that can parse unstructured data for patterns that indicate corruption, including concept clustering, data visualization tools, and linguistic analysis techniques.

Given the events of 2015, for many organizations this year promises to be a defining year when it comes to their electronically stored information.

Rachel Teisch is vice president, marketing at Conduent. She can be reached at rteisch@conduent.com.