Be a Jetson, Not a Flintstone: 7 Tips for Social, Mobile, & Cloud in E-Discovery

by Exterro, Inc.

Exterro's Comprehensive Guide to E-Discovery Data Collection

We’re all used to how quickly technology changes these days – one moment something is all the rage (remember Pokemon Go?) and within months, it’s ancient history. Those platforms that do stand the test of time become so ubiquitous (nowadays, Facebook is your grandma’s social media) it’s hard to remember life before they existed.

In the legal world, lawyers tend to be slow adapters when it comes to technology, but with the influx of new data types and growing data volumes, your team needs to be more Jetson and less Flintstone when it comes to e-discovery.

This year at LegalWeek NY, Robert Cruz and Jonathan Rudolph of Actiance were on a panel called E-Discovery in 2017: Social, Mobile, and Cloud Go Mainstream, where they discussed some of the trends that are happening within the industry:

  • The Cloud has won when it comes to messaging: 75% of organizations have already invested in cloud based messaging, and another 20% will do so in the next 12 months. So, it's not a matter of if, but of when.
  • There are so many new messaging types that must be discoverable, many you might not think of. One example was of a company needing to be able to collect data from Zillow, a real estate app, because there is a messaging option where you can contact a realtor directly.
  • Some of the challenges these cloud-based messaging apps present are that many aren't educated on company policies regarding them, or there are no policies in place. As Jonathan Rudolph stated, "With these applications, people don’t think before they type. When you allow people to share documents with these application, you will get things that might not have otherwise been shared. Which means they can potentially be brought into a litigation. Having policies in place and educating users on them is the only way to fight against this."
  • There is a new FRCP amendment coming December 1st, 2017: Rule 902(14). The amendment will state that ESI must be self-authenticating so that there is no need for a forensic or technical expert, except in very specialized cases. This will cause custodian self-collection, screen scraping, etc. to become more severely scrutinized. But at the same time, the cost savings from this will be immense.

Last November, Robert wrote a guest blog for Exterro, where he laid out some tips for e-discovery preparedness in 2017:

  1. Gain Visibility: As you continue to refine your eDiscovery protocols, ask yourself if you really have a handle on the communications tools in use by your company today. If it has been more than 6 months since you asked yourself this question, it might be a good time to pay a visit to the IT messaging guys.
  2. Revisit Communications Policies: next stop should be with those who have responsibility for shaping corporate communications policies to determine if existing policies are expansive to address new communications forms. Many firms today have developed a social media policy, but it is easy for those policies to have become static or ineffective in guiding behavior around the latest generation of rich collaborative tools. Policies should be inspected including clarity of acceptable and prohibited uses of specific features of each technology.
  3. Refresh Employee Training: Of course, disseminating the policy within your company is arguably as crucial as the creation of the policy itself. It is critical that employees are sufficiently kept informed of the acceptable uses of new tools, and have a defined resource/program to turn to with questions.
  4. Automate Policy Enforcement: training is a necessity, but training alone is rarely sufficient to ensure that policies are adhered to. Attempting to manually enforce policies through the native capabilities of each tool is typically not effective – so exploration of 3rd party tools that provide feature control and policy enforcement for each communication channel can be a worthwhile investment to minimize potential discovery risks.
  5. Understand Social Identification & Collection: As you plan for future eDiscovery, make sure you fully understand what mechanisms are available to collect ESI from sources like Twitter, Jabber, Skype for Business, and LinkedIn. If native APIs are not available – or if they lack the ability to preserve a complete record of that social communication – then it is time to explore 3rd party tools or services that can automate the collection of those sources.
  6. Preserving Non-Email Sources of ESI: Similar to the point raised above, each new communications tool is likely to require a unique approach to preservation. Understanding tools available to preserve social posts – along with metadata and subsequent changes or deletions to those posts – should be an area of pre-litigation due diligence in order to meet the new FRCP ‘reasonable’ standard of preservation.
  7. Conducting Non-Email Review: Finally, as you examine the tools you have in place to manage document review, make sure they can preserve the rich metadata and conversational context from non-email communications channels - and that don't force you to review these items as email (as many do). Converting a conversation that happened on LinkedIn to email not only lengthens the time and expense of review, but also increases the chances that some important part of that conversation was missed entirely in the review process.

For more on this topic, Robert Cruz joins webcast speakers Craig Ball (e-discovery blogger), Tara Jones (lead paralegal, AOL), and Zach Warren (editor-in-chief, Legal Tech News) on an Exterro sponsored webcast: Mainstream News & E-Discovery: What You Should be Watching Out for in 2017. To watch on demand, click here.

Written by:

Exterro, Inc.

Exterro, Inc. on:

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