Top Five Takeaways from PREX17

by Zapproved LLC
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Tech, data security and ethics dominate e-discovery conversations heading into 2018

Every year at PREX, our in-house e-discovery conference, I’m exposed to an impressive array of intriguing new perspectives and creative solutions by the business and thought leaders in the e-discovery space. This year was no different. The combination of forward-thinking presentations, conversations with old friends and focus on new technology applications provided a clear set of themes that are driving our industry heading into 2018.

Here are my top five takeaways.

1. Hunger for technologies that work is building

Software continues to drive the business world, and the options are becoming overwhelming. This year at PREX we added a Technical Track breakout series to address a growing desire to understand how to best use technologies for specific legal department needs. We could have easily doubled the amount of these sessions.

From developing KPIs for in-house legal operations to migrating data in a legally defensible way, it became clear that we’ve moved beyond considering whether technology is the solution. We now collectively accept that all aspects of business require technology, and, given the exploding number of options, the primary question is one of optimization. Attendees were concerned with intelligently strategizing in a holistic manner for their larger company ecosystem.

Our friends from Hanzo Archives pointed out that by 2020, 50 percent of the workforce will be millennials who won’t use email as a purposeful communication tool. Further, BYOD (bring your own device) tendencies blur the line between data accessed by work-provided devices and data accessed through personal devices. These changes in how the workforce creates, exchanges and retains ESI means that business leaders can no longer adopt piecemeal, siloed technologies in a patchwork architecture.

2. E-discovery, information security and data privacy are aligning

A year ago,the concern for data security was certainly growing, but siloed. Questions of information governance, employee privacy and e-discovery were all treated as distinct areas of focus — all important, but unrelated. Not in 2017.

Presenters such as Code42 made the connection between data backup and security practices. Thought leaders like Steve Watson illustrated how the GDPR for the EU affects cross-border data transfers and how the proportionality principles effectively function. The takeaway is that businesses can’t afford to treat data considerations separately. A comprehensive information strategy that anticipates the interconnectedness of data sources and resulting legal requirements is no longer a luxury.

3. Sources of ESI are exploding and evolving

When considering business-relevant data sources, many of us quickly think of our standard personal devices — cell phones, tablets and laptops. Did drone-sourced forensics come to mind, though? What about synthetic DNA? As sensors that transmit information back to the cloud become standard in most devices (and even ourselves), including our vehicles, appliances and smart buildings, businesses and our legal system are being inundated with an overwhelming amount of progressively more sophisticated information. The implications for data collection, preservation and analysis are immense.

Recently Amazon was compelled to turn over information from their voice-activated Echo device in relation to a murder case. In my observation, businesses are now trying to figure out their electronically stored information strategies not only for our current landscape, but for the fully interconnected decade to come.

4. FRCP changes are influencing corporate behavior

Business world adaptation to changes in the Federal Rules of Civil Procedure continues. Legal departments are updating their playbook to address the renewed principles of Rule 26 and Rule 37(e) required to mitigate both cost and risk of e-discovery today, Overall, innovative teams are creating more defensible and proportional in-house preservation practices, to ensure compliance with all FRCP rules and earn favorable outcomes with the court. Influenced by the growth of ESI volume and the proliferation of relevant data sources, my impression is that businesses are looking to create flexible, adaptive strategies to accommodate the highly fluid environment our technology-embracing world has created.

5. Business ethics are a customer concern

Our featured keynote this year came from Glenn Greenwald, the Pulitzer Prize-winning journalist best known for his work in covering the NSA surveillance program exposed by Edward Snowden. Mr. Greenwald’s thought-provoking presentation focused on the inherent threats to personal privacy, our justice system and democracy from the potential misuse of advanced technology. In the light of the Snowden revelations, alongside frequent data exposures by Fortune 1000 companies, consumers have begun to demand technology companies demonstrate a commitment to the protection of their personal information. As a result, businesses have shifted their view of privacy, seeing it as a commercial imperative that is vital to the long term viability and profitability of their companies. Greenwald noted that a decade ago, technology companies were the leading cause of how privacy was compromised, but now they are the leaders in protecting privacy.

The resulting conversation and debate that followed by the audience was unlike anything I’ve seen at PREX. Attendees passionately explored what it means to have personal data gathered and safeguarded by businesses. The discussion of legal considerations of data use and impact on e-discovery permeated the remainder of the conference. It was heartening to see an engaged, intelligent community consider the long term implications of our use of technology and the responsibility of being an ethical corporate citizen.

I’m excited to see how these issues permeate our decisions and discussions in 2018. I’m already looking forward to PREX18!

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