Litigation Support Services

E-Discovery Trends in 2017 to Watch

Monday, 5th June 2017

The variety, quantity and complexity of data collected and stored by even small companies is never more surprising than when litigation is required and an eDiscovery process ensues. However, technology that is responsible for complicating the eDiscovery process is also coming to the assistance of investigators and lawyers. There are a number of trends to watch in this area, but artificial intelligence and machine learning are leading the way.

For instance: The desire to store electronic documents safely, backed up against instances of ransomware and to afford universal access to a mobile workforce, has led companies to increase corporate offsite or cloud based storage and has also fuelled the growth of personal storage accounts that can be accessed through numerous device types. there are a huge variety of such options available. This makes the data collection and preservation process required for forensic analysis and subsequent litigation quite a challenge, particularly where privacy rights are concerned. It’s not surprising then that the future for eDiscovery and eDisclosure technologies and specialists is very bright.

Here are some eDiscovery trends in 2017 to watch out for..

Artificial Intelligence Based Technologies

Given the shear volume of information of data, in all its various forms, processing it manually is obviously out of the question, especially when considering often tight litigation deadlines. AI based eDiscovery AI technologies have for some time been employed to scan documents for keywords, phrases, and semantics, to reduce the manual load, however the technology is evolving and improving, as are the systems and processes employed.

One such area is ‘predictive coding’, which is a form of Technology Assisted Review. This technology actually learns from human reviewers and then applies this to its automated processes, with great success and accuracy, and with significant cost savings. It works in many ways very similar to today’s search engines, like Google, by employing highly sophisticated search algorithms to identify and rank relevant pieces or information.

The days of employing teams of paralegals to scan through thousands of ESI documents are, hopefully, over, although the final review of the documents that have been passed through is still conducted by lawyers and paralegals.

E-Discovery and Beyond

e-discovery and beyond The growth of AI components in documentation and other systems will enable organisations to monitor information flow across a large number of disparate systems and data types. While eDiscovery may be thought of as only taking place during investigations, pre-litigation, the processes and responsible technologies hold the promise to expose a far greater understanding of data interrelationships. This will enable those organisations not only to identify potential areas where fraud can or is taking place, but also identify potential compliance issues. A major growth area here is ‘predictive analytics’, which combines data mining and machine learning to uncover patterns, trends and correlations across multiple data streams, all leading to enhanced risk management.

Cyber Security

e-discovery and beyond Similar AI based technologies can be employed to detect incidents of intrusion and fraud. Cyber crime is advancing rapidly, aided by ageing systems, lack of proper education and often, technologies available to the hacker surpassing the capabilities of the organisation under attack. E-Discovery tools can assist in identifying breach points and data security risks, all leading to the placement of more capable systems to help prevent such breaches in future and even protect data if a breach occurs.

Social Media

e-discovery in social media Understanding how data is communicated or distributed is critical to the eDiscovery process. Most companies now accept that social media is a more popular communication media than email. Social media is used both personally and professionally to buy, sell and influence. Given that many, particularly younger people, have an ‘always-on’ mentality and are usually permanently connected to their sphere of influence, companies have accepted that their employees will have their own devices, devices that may come in to contact with the company’s own systems. Having so many different possible social media venues that could provide valuable evidence is an ongoing challenge for those involved in eDiscovery.

Wearable Devices

e-discovery on wearable devices

In the same vein as social media, ’personal’ technology has advanced to a point where consumers have a variety of devices through which to receive and consume data. Not just the traditional laptop and mobile device, but fitness trackers, watches and soon, wearable augmented reality oriented devices. It’s easy to believe that the personal data that these devices collect may be subject to privacy laws, but more often than not, the data the devices collect ends up in the cloud, and those cloud based storage provides can be compelled under law to release information.

Increase In Personal Data Protection

A recent change to privacy laws introduced the concept of ‘the right to be forgotten’, where a search engine, for instance, can be compelled to remove certain personal information from its index. New laws such as the ‘General Data Protection Regulation’ (GDPR) introduced into Europe will have a world-wide impact as it affects cross-border investigations and litigation. Mobile data discovery will become essential to handle data that has to cross borders to comply with discovery requests. Such systems will need to process, filter and analyse data locally, avoiding the need to pass the data across a border. Personal data may also need to be identified and erased, else companies face strict and severe financial penalties.

E-Discovery remains set to be an interesting and challenging area for the legal profession for a long time to come. Companies like Blackhawk Intelligence are particularly well equipped to assist law firms with their investigations and pre-litigation processes, removing some of the burden and retrieving the data essential to the successful outcome of a clients case.

Summary