Multiple trends in e-discovery intensify use of technology

Global e-discovery

More and more companies are operating throughout the world, so the impact of differing requirements for e-discovery is increasing, especially those relating to privacy. The rules tend to be much more rigorous outside the United States, particularly in the European Union. “Transferring data across borders properly and legally is front and center on everyone’s mind as we operate in an international market,” says Dave Sannar, VP of international development for Catalyst, which offers a hosted litigation platform and professional services.

Europe has adopted the General Data Protection Regulation (GDPR), which was promulgated in April 2016 and has a two-year implementation timeframe. It regulates the manner in which data can be collected and moved across international borders. The regulation makes an e-discovery company or law firm responsible for any compliance failure. “If there is a breach, the data handling entity can be held liable for up to 4 percent of its gross revenues worldwide, whether the breach was intentional or not,” Sannar explains.

A number of other trends are occurring in international litigation that are having an effect on e-discovery. “Litigation is beginning to be seen as a business strategy in Asia as evidenced by the aggressive litigation some Korean electronics companies are taking with regard to protecting their IP,” Sannar says. Those companies are seeing the potential benefits of using litigation as a method to protect or monetize their IP, which results in greater requirements for e-discovery.

Other factors are also driving the demand for e-discovery. “The United States was the first country to carry out antitrust investigations that reached beyond its borders, and there is a domino effect with other countries now doing the same thing,” Sannar adds. “These government investigations are often followed by class action lawsuits, creating additional challenges for the multinational companies in question.”

The international nature of that litigation also creates more issues with respect to moving data across borders. Therefore, it is all the more important for companies providing litigation services to be aware of local laws and customs regarding privacy.

Catalyst Insight provides secure, hosted discovery technology with a rich visual analytics capability and customizable review workflow, according to the company. Its Insight Predict product allows for reviews by multiple teams with integrated predictive technology to reduce the total cost of review. The product is fully cloud-based, and the company provides professional services such as forensics and collection.

Impact of IoT

One question about data resulting from the proliferation of sensors is whether it will become a more frequent target of e-discovery. “Some data in this category, such as E-ZPass toll road data, has been used to confirm the whereabouts of individuals in court cases,” says Garth Landers, research director at Gartner. “However, use of this data is in the early stages, and case data is limited.” Context is important; for example, there may be disagreement on how the raw data should be interpreted. “E-discovery has always been communications driven,” Landers says. “E-mail messages show intent, acknowledgement and decisions, which are central to litigation. So far, the IoT is still a gray area.”

Potential issues abound, however, including whether personally identifiable information (PII) is involved. “Most information from IoT sources is stored in structured databases,” says Exterro’s Piwonka, “and it could be used in litigation to make a claim that an individual was doing something at a certain time.” The information may or may not be encrypted; it could also involve health data from wearable devices, for example, that could be considered PII. In the rush to make use of the IoT, some issues were not fully considered. Organizations may need to take a step back and think about who the custodian is, whether the data could be part of e-discovery and whether it is being appropriately protected.

Moving to the cloud

SaaS-based delivery models for e-discovery are becoming more prevalent. “The trend toward SaaS is well underway,” says Landers, “and is gaining momentum. The move to Office 365 is another part of this equation. With more data in the cloud, it makes sense to have cloud-based e-discovery solutions.” The established benefits of SaaS delivery such as scalability, faster release of new features and simpler interfaces apply to e-discovery as well.

SaaS delivery also offers simpler inclusive cost models and, in general, lower costs than on-premise and legacy hosted products. Some litigation services have begun offering a fixed price for a given e-discovery process; those are making inroads into the traditional time-based billing model, as they are in other areas of law. Nevertheless, factors such as data volume and increased litigation will keep the total size of this market on the increase.

“With more data in the cloud, it makes sense to have cloud-based e-discovery solutions.”