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e-Discovery Challenges Crop Up During WFH, Data Proliferation Period: Report

As underlying changes in technology proliferate, it is becoming increasingly difficult for litigators to successfully implement defensible e-discovery, argues a new white paper from software company Exterro. As such, the company has offered a number of ideas to help address these challenges.

exterroThe report, entitled “Overcoming the 4 Barriers to Defensible E-Discovery: Examining Today’s Biggest E-Discovery Challenges and How to Tackle Them,” features expert insight from Matt Miller, vice president of Global Information Governance Advisory Services for Consulting at Consilio, and Jennifer Feldman, co-chair of E-discovery and Information Practice Management at DLA Piper.

Specifically, the report covers:

  • Harmonizing preservation requirements with data privacy requirements
  • Threats to data integrity
  • The rising volume of investigations
  • The increasing number of places where data might hide

The problem a lot of litigators are running into, according to the paper, is that there are so many more places for e-discovery can take place. This expansion has proved challenging.

“There are a whole host of new data considerations that legal and compliance departments didn’t necessarily have to worry as much about only a few years ago," reads the white paper. "With data proliferation generally comes application proliferation; the number of software applications that the average businesses [use] now stretches into the hundreds, and these data sources are generally discoverable during litigation.”

Sometimes, notes the study, new applications are unable to support e-discovery, and in some cases legal departments are experiencing challenges collecting needed data. The paper calls upon companies to be cognizant of the ways new data types are generated, and suggests they find ways to maintain and preserve data as it might be relevant during discovery.

Further, data privacy and security issues have also become increasingly challenging to mitigate as cyber crime has surged in the wake of the COVID-19 lockdown and increasingly popular work-from-home arrangements. “Even compared to only a few years ago, there are many additional places that we’re seeing data being stored—and remote working has had great impacts on the use of those data sources. Not only are ephemeral messaging sources like Slack, Teams, and Zoom being used more often, they’re also capturing both audio and visual evidence,” notes the report.

Additionally, employees working remotely may be putting data onto non-approved systems that might lack requisite security qualifications. This data could be stored there indefinitely, even after the employee has left the company, and it could be compromised. “The FBI reported that the number of complaints about cyber attacks for their cyber division pre-COVID was about 10 per day. Now, it’s a 400% increase since the start of the pandemic—4,000 complaints per day,” Miller said.

From Twitter

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Further muddying the waters, Piper says, is the fact that data privacy has become increasingly complex as different nations and regions enact their own specific user privacy laws. This can also lead to inconsistent preservation obligations.

“In the U.S., we have arguably the most aggressive discovery practices, and those practices run smack into the face of data privacy considerations abroad,” Feldman said. “So when you’re implementing a legal hold in other geographies, it really requires now that you have a knowledge of data privacy laws in those other geographies as well. Then you have the challenge of working to satisfy your preservation obligations in a U.S.-based litigation matter without violating the data privacy regulations that you’re facing in different geographies.”

According to Markets and Markets, the global e-discovery market is expected to hit close to $13 billion by 2025; in 2020, that same industry was valued at just over $9 billion.

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