How can eDiscovery become the sustainable response to current legal data management challenge?
In the 1990s, the world entered the digital age, which is a kind of age that has never existed before in all of history. Today – and there is no reason this situation will change fundamentally in the coming decade – electronic information is inherent in all aspects of business, government and private life. The digital age obliges legal organisations to grapple with substantial complexity in managing electronic data. The complexities arise due to, for example, the enormous volume of data, the need to deal with legacy infrastructures, the diversity of data sources and formats, and the growing number of data-related regulations. These complexities in turn impact how information gets created, is stored and disposed of, and even how it can be deployed as evidence.
No wonder then that various traditional electronic information practices (i.e practices developed in the 1990s and before), such as digital forensics, data protection technologies, data analytics, quality assurance, litigation support, eDiscovery, data security and so on, have reached the point at which, instead of simply supporting legal endeavours, they have created legal requirements and challenges in aid of themselves.
The massive challenges for law firms, government agencies, legal departments and all others confronted with the legal aspects of data management are compliance, costs and competitiveness, i.e managing the changes required to stay compliant and competitive, while keeping costs under control. Law firms, legal departments and other compliance units must adapt their practices to the available technology in order to carry out their oversight and data-related responsibilities. The change management efforts that those institutions are currently carrying out around the world in order to inject needed data technology into their respective practices are as impressive as they are indispensable.
But, whereas technology mostly developed as a global and borderless institution, laws and regulations are almost entirely national and regional. Because of the national or regional predominance of data-relevant law, it is impossible for legal departments to simply adapt their practices to a global, jurisdiction-oblivious technology. Therefore, one of the core legal technology challenges for legal professionals is to adapt to global technology developments, while simultaneously finding ways and means to have generic technology modified to fitthe particular legal circumstances in which they operate. The relevant circumstances include requirements stemming from the jurisdiction(s), industry type, clients, cases, etc.
Ultimately, in order for lawyers to obtain data results that fit into their cases’ strategies and other projects, a change management effort is required that is not only technological in nature, but also legal in nature, and perhaps even predominantly so. Legal data technology change management is necessary and desirable, but, in order to consistently obtain defensible results, such change management efforts must be tailored legal solutions implemented under the direction of legal professionals by an interdisciplinary team.
A US-Originated Approach Being Repurposed Worldwide
The unique US legal ‘discovery’ practice – which involves broad document management obligations for pre-trial litigation proceedings – engendered in the United States a colossal and unique interdisciplinary innovation, the eDiscovery practice. The Electronic Discovery Reference Model (in the industry, simply EDRM) symbolically organises the high-level US discovery procedures to conceptually show how the process of US eDiscovery works to reduce the entire volume of case data to only that data that is deemed relevant to the litigation at hand.
The EDRM structure can be described as follows: In order to review and produce the necessary documents to opposite counsel, US litigators have to not only identify and collect the relevant data, but also to make sure that relevant data has been sufficiently preserved from the moment a potential litigation has been identified as a reasonable possibility. The processing of the data refers to a mainly technical step to create an efficient litigation database, while document review refers to the steps of screening the documents for production relevance including legal privileges protection. Presentation refers to the presentation of evidence at judicial proceedings.
As the US eDiscovery practice has matured, the EDRM has naturally been expanded upon, refined, and of course criticised, but it has stood the test of time, becoming a useful reference point in various other US and international data management contexts, such as due diligence, and civil and criminal investigations initiated by US authorities. Today, the US eDiscovery practice and the EDRM are used as the basis for data technology solutions across legal practices and jurisdictions worldwide.
In fact, the term ‘eDiscovery’ has been adopted internationally by default, despite the fact that today it no longer refers exclusively to US legal discovery.
Today, eDiscovery is seen as a specialised, lawyer-driven legal technology practice allowing the appropriate managing of data from all kind of sources such as emails, network share files, business databases, voice data, chat data, etc. Legal professionals in non-US jurisdictions use US-developed eDiscovery concepts and technologies to solve their own data challenges. For example, the document production tools embedded in the mainstream technology can also be used to create smaller-scale, civil law-driven productions (eg to courts) in opposition to the counterpart, US-style-broad-scale productions (eg to opposite parties). Likewise, the data preservation tools and methods, while necessary in the US because of legal obligations, are also useful – albeit usually optional – for counsels’ legal strategies outside the US.
An important example of the application of US-developed eDiscovery tools outside the US legal discovery context is in the context of a company’s response to a dawn raid by authorities. Corporations can use eDiscovery tools to quickly and accurately access the seized data. Similarly, in the framework of competition law investigations, eDiscovery is a powerful practice for effective participation in defense, cooperation and leniency programs.
A Practice Expanding Towards Other Data Disciplines
Currently, and this is no surprise, major work is in progress worldwide around the question of legal data management and eDiscovery. Over the last few years, we have seen a significant expansion of the scope of eDiscovery to include elements from other data disciplines, such as IT forensics, traditional data analytics and artificial intelligence. We are currently seeing data protection technologies being injected into the European eDiscovery practice. One can foresee that this trend will increase after the global rollout of the new European Union data protection regulation. We also are observing eDiscovery reaching into the data security space – probably a result of both the ongoing investigations in the financial sector and the current data breach-related investigations. The growth of the usage of eDiscovery legal technologies globally will allow cost and risk reductions, efficiency gains within the legal profession and, importantly, a contribution (by legal technology) to the stability of evidence-based rule of law.
“The eDiscovery industry will have to negotiate a changing and challenging landscape in Europe and globally”
Hence we can predict that eDiscovery will significantly develop and will become a very different practice ten years from now. We expect new technologies, new classes of legal technology vendors and last, but not least, new types of lawyering. In the European context and perhaps elsewhere as well, legal departments will develop, implement and control their own eDiscovery functions. In turn, corresponding information governance departments will have to coexist with the relatively independent eDiscovery approaches of their legal and compliance departments. To reach that stage, which one might think of as ‘eDiscovery II’, the eDiscovery industry will have to negotiate a changing and challenging landscape in Europe and around the world.
Data Protection Challenges
Even as technological evolution continues to be a driving factor in how lawyers handle data, the developing data protection laws, such as the forthcoming EU data protection regulation, will likewise continue to impact how organisations respond to both domestic and cross-border information requests. Increasingly central to lawyers’ work will be the need to adapt the technology to data-related regulations and to be able to demonstrate and defend the suitability of the chosen adaptations.
The current ‘eDiscovery versus data protection’ struggle will have to mature into ‘eDiscovery with data protection—by design’ in order for eDiscovery to continue to serve its purpose at the heart of legal activities.
Practice Independence Challenges
Based on the above-mentioned dynamics of the eDiscovery field, we can envision a progression towards a multidisciplinary practice, where the proximity of security, analytics, data protection and legacy eDiscovery will expose significant independence challenges. For example, the integration of elements of data security into eDiscovery will challenge the current ‘segregation of duties’ weakness of legacy eDiscovery practices, such as the possibility for a data collector to solely design, execute and quality control his own deliverable.
Further integration of law and technology practices will add a further dimension to questions of lawyers’ independence and therefore add additional pressure to the status of the various legal privileges, which are already tremendously challenged in Europe. And the ever more prevalent use of automated data technologies, such as technology-assisted legal document reviews, will considerably impact the sustainability of the hourly-based billing models of both technology and legal providers.
These independence issues already exist within today’s eDiscovery practice, but they will in the future be explicitly recognised, and to some extent perhaps even regulated. As a result, we can predict not only that the most agile legal and technology vendors will soon embed ‘independence’ as a key feature of their services, but also the eventual conversion of the full-service, legacy vendors.
Training & Education Challenges
Currently, the legal industry in Europe is facing extremely serious eDiscovery resourcing challenges. Despite the availability of young professionals in Europe eager to be trained, as well as the need of European corporations and law firms to rely on in-house teams for certain parts of their eDiscovery efforts, we are not aware of any specific training centre, law school or technology university addressing the challenge to deliver sufficiently skilled, multidisciplinary eDiscovery professionals into the legal industry in Europe. The consequences of this situation at a European level are stunning: where significant portions of the eDiscovery efforts could, in theory, be more effectively undertaken in-house by corporations or law firms, an unnecessary outsourcing situation develops, negatively impacting the cost and risk profiles of those potential (and desirable) internal efforts.
Cost & Risk Challenges
The economics of eDiscovery as a legal technology practice is another major challenge for the next decade. For example, in the US, the risks arising from insufficient data preservation efforts in (and prior to) litigation are well-known and well-documented in, eg judicial opinions addressing the amount of monetary sanctions for spoliation of potentially relevant evidence. Outside of the US, however, there is little solid eDiscovery reference data with which to evaluate risk and cost profiles for various data preservation options. Moreover, in Europe, where the disposing of data may well in the next decade become a key topic in terms of both data protection and cost of doing business, eDiscovery has not yet identified a costs framework with which to evaluate data disposition efforts and the corresponding financial provisions to be made.
The legal profession in Europe and globally has now started to use eDiscovery as an interdisciplinary legal technology practice. All elements are present for this practice to eventually overcome the challenges ahead of it. But what will be the catalyst for eDiscovery to converge and grow into a robust practice that meets the needs of the legal profession in the coming decade?
In the past decade, corporations in Europe have shouldered much of the cost of the advances in anti-corruption, anti-cartel, sanction enforcement and tax compliance legal technology. The stage seems set for corporations to again carry the burden for the alignment with, eg the forthcoming EU data protection regulation.
It has to be anticipated that the private sector will again, throughout the coming decade, have to fund the necessary developments, partly out of self-preservation. But this time their participation in modernising the eDiscovery practice will allow corporations and law firms to proactively direct developments according to their needs in the first instance and to have more control on the ongoing implementation of their strategies.
About the Author:
Rafik E. Abboud is a veteran legal technologist, who specializes in eData and eDiscovery consulting and auditing for data-intensive legal matters in European legal contexts. With RDTA Consulting, his independent Swiss practice, Rafik and his team provide technology, resourcing and advisory services to corporations, law firms and IT providers in the EMEA regions. The RDTA support concept encompasses legal, technology and accounting aspects of eDiscovery. Rafik has held positions as head of IT in an international law firm, CEO of a pioneering eDiscovery technology service provider with clients across Europe, project manager of a high-profile investigation within a global Swiss bank and eDiscovery director at a Big Four accounting firm in Switzerland.
Since 2001, Rafik has provided advanced data technology support to corporations and their counsel, supporting matters across the spectrum, from due diligence preparation to dawn raid aftermath. His areas of support expertise include international arbitrations, MLAT requests, regulatory compliance matters, internal compliance investigations, cross-border litigation, responses to SEC/DOJ investigations, and sensitive data preservation and data disposition efforts.