Legalweek, which was originally supposed to take place on location in New York, has been transformed into a series of five interactive virtual events to be held throughout 2021—hence the updated title of Legalweek(year).
The first of these events took place February 2 — 4, and given the challenges posed by the pandemic, there was a lot to discuss. As is the case with just about every other industry, remote work has fundamentally changed eDiscovery workflows and litigation processes—and trends that were already impacting the industry have been accelerated by the pandemic.
Below are seven key takeaways from the first sessions of Legalweek(year) 2021.
1. Remote work means just about all communications are discoverable
Discussions that were once held in boardrooms, offices, or hallways are now taking place online—which means the content of those conversations are now discoverable. Thanks to tools
like Zoom, Google Meet, Slack, Microsoft Teams, and countless others, these conversations have been transformed into electronically stored information (ESI) and organizations will be expected to produce these records if they are requested.
2. Legal teams need insight into new company tools and technologies
Because of the legal implications of meeting apps, chat tools, and team collaboration platforms, legal teams need a seat at the table when these technologies are evaluated and implemented. In order to effectively collect and preserve evidence, in-house counsel and eDiscovery professionals need detailed insight into how these tools work and what data they contain.
Companies that implement a communication or collaboration tool without consulting its legal team are inviting a potential eDiscovery nightmare.
3. Legal teams, custodians, and other stakeholders have to work together
Related to the point above, teamwork and relationship building across the organization is more important than ever. eDiscovery professionals need to know who the custodians of various data sources are—and they need to work closely with these individuals. The amount and complexity of modern data means legal teams need the help and input of others (especially the IT department), so performing eDiscovery in isolation is no longer an option.
4. Proliferation of data means companies need to be proactive
The key modern eDiscovery challenge, which was mentioned in just about every Legalweek session, is the sheer amount of data that teams have to deal with. Companies simply can’t wait for a legal matter to arise before considering how data will be found, reviewed, and exported for eDiscovery. Good information governance and data mapping are crucial to reducing the cost and complexity of eDiscovery and must be prioritized across every organization.
5. Legal teams must understand how other departments communicate and scope investigations appropriately
Given the tremendous amount of data legal teams are forced to deal with, scoping an investigation effectively at the onset and identifying the most relevant sources of potential evidence is important. This comes down to understanding how an organization’s departments communicate and collaborate. By understanding the habits and practices of employees, legal teams can scope an investigation much more accurately and cut down on costs and time spent.
6. Effective eDiscovery must be balanced with privacy and security considerations
While finding relevant evidence in a mountain of data is difficult enough, the issue is further complicated by privacy and security implications. Regulations like the GDPR and CCPA place significant restrictions on the processing of personal data—and these restrictions extend to processing for eDiscovery purposes. These days, legal teams simply can’t start working with data before considering what the privacy and security requirements are—especially when employees are working remotely in multiple global jurisdictions.
7. Team collaboration tools have completely changed eDiscovery
Even before the pandemic, companies were increasingly relying on platforms like Slack, Workplace from Facebook, and Microsoft Teams for communication and collaboration, but the events of 2020 have made them absolutely indispensable. The problem, however, is that, when it comes to eDiscovery, enterprise collaboration platforms lack the maturity of a well-understood data source like email. Generally speaking, these platforms don’t offer adequate built-in legal features, while traditional eDiscovery solutions aren’t equipped to work with enterprise collaboration data. As a consequence, companies need to find alternative ways of efficiently finding, collecting, and exporting this unstructured data.