Ari Kaplan interviews Scott Cohen, the managing director for e-discovery and information governance, as well as for practice and client services, at Winston & Strawn LLP, who began working in the litigation technology sector in the late 1980s as an entrepreneur focused on using his technical capabilities to bridge technology and the law.
Tell us about your role at Winston & Strawn.
I am responsible for the firm’s large and extensive e-discovery and information governance group, and for the practice and client services team, which includes the in-house litigation, forensic training, development, solutions, data strategy, and project management professionals.
How has e-discovery evolved?
In the 1990s, e-discovery was very new and scary. It lacked standardization back then, but the field has evolved to the point where there are now many established standards and practices, which are applied universally. Thought leadership has also expanded significantly, with a range of organizations providing guidance.. Many services are now commoditized, but the industry still needs to continuously adapt to new approaches as technological capabilities expand. We apply technology to existing problems, but have to modify that application as new problems arise.
What are some examples of non-traditional data sources?
We are now dealing with newer data sources that create challenges across the EDRM, which we need to address across an array of litigation matters. Given that the entire e-discovery community needs to overcome these obstacles, it is creating universal standards to build consistency. Audio is an example of an old but still non-traditional data source that has become much more common. Certain cloud data sources, such as Microsoft 365 (even though it was developed more with e-discovery in mind) and G Suite, as well as Slack, WhatsApp, and Google Hangouts data can be challenging within the context of e–discovery.
What specific challenges do non-traditional data sources introduce in e-discovery?
One of the most attractive features to users of tools, such as Snapchat, their ephemeral characteristics, poses significant risk because of the inherent preservation concerns. These differ from the challenges associated with other communication tools, such as Slack, because of their native format. If a legal team is unfamiliar with the JSON format or a system’s particular data structure, discovery could be impeded due to the risk of incomplete information. Also, many “discovery” APIs are not as well-documented as they could be and while many vendors offer related solutions, they are still evolving. One example of this inadequacy in the early stage is the inaccessibility of some types of attachments to Slack messages during the collection process.
What difficulties is the Internet of Things causing?
The Internet of Things may not yet be mainstream from an e-discovery perspective, but connected devices enjoy widespread use and do tend to generate an extraordinary amount of data that is not readily accessible. IOT data also may be extremely volatile so it may not be there when you are ready to collect it. After all, IOT devices, such as thermostats or fitness trackers, are not meant to store large repositories of data. Furthermore, IOT data may only exist in the manufacturer’s cloud and not be stored on the device at all. Lastly, they may also require cross-correlation with other gadgets. An Amazon Echo or Google Home, for example, may be associated with a lightbulb or a video doorbell.
Why does API usage matter?
Most cloud tools do not offer the same freedom to preserve and collect as on-premises tools so, as more data is stored in the cloud, legal teams must increasingly rely on APIs to conduct e-discovery. That said, most APIs were not created for discovery. Rather, they were simply designed to permit integration with different products and, therefore, some of the necessary discovery-oriented capabilities may not be present. An API, for instance, might only offer access to a transformed version of the information a team needs, rather than native details, because it was originally developed to serve a completely unrelated purpose.
What can e-discovery professionals do to prepare for these challenges?
E-discovery professionals should read everything they can about non-traditional data types and the management of unique forms of data. An enormous amount of information is available in the industry press. They should also take advantage of groups like ACEDS that recognize the importance of offering training in these areas. Finally, use your network because your peers have likely dealt with similar issues and would be happy to offer insight on related challenges.