Electronic Discovery & Information Governance – Tip of the Month: Adapting Information Governance and eDiscovery to the “New Normal”

Additional author Patrick Garbe.

Scenario

A large financial services firm engaged outside counsel and an eDiscovery provider for an internal investigation relating to trading activities that may result in the need for disclosures to regulators and follow-on civil suits. This was the first major investigation at the company since the beginning of the COVID-19 pandemic, and it was quickly apparent to the in-house legal team that their pre-March 2020 information governance and eDiscovery plans required updating to reflect a vastly changed working environment. The policies needed to account for nearly two years of remote work for nearly all employees and the subsequent hybrid structure of partial work from home (WFH) and partial work in the office. Among the first steps taken were the preservation and collection of data from key individuals identified as participants in the relevant trades, followed closely by an intensive early case assessment to find facts fast and manage the costs. The in-house team took care to take a fresh look at each step of the process. The goal was to avoid defaulting to the way things had always been done and to arrive at a process adapted to the “new normal.”

Information Governance, Preservation and Collection Today

As we are all well aware, the pandemic imposed a remote working environment, virtually overnight, on many workplaces, particularly those in professional services. Some of the unexpected benefits arising from this imposition were the many examples of greater productivity and efficiencies gained through the use of technology (both commonplace and newly developed) that earlier had limited prevalence in these industries.

Today’s information governance and eDiscovery plans are being updated to meet new challenges for managing data sources and identifying data within the scope of investigations, litigations and compliance. In addition, ongoing concerns over data privacy and cybersecurity, including responses to data subject access requests (DSARs), present issues that may lead to a need for changes to “standard” policies and procedures.

Preservation, legal hold and data collection underwent significant changes since March 2020 when WFH suddenly expanded from Bring Your Own Device (BYOD) to Bring Your Own Office (BYOO). Legal hold notices now may place a greater emphasis on data and documents stored outside of an organization’s data servers and offices. Pre-pandemic data collections primarily took place on-premises; however, the pandemic demonstrated that organizations should take WFH into consideration when considering preservation and collection best practices. New strategies and processes were necessary to conduct remote data collections, especially from mobile devices, cloud storage, and local storage on devices outside of the organization’s network. Remote data collections should be considered when updating your information governance and eDiscovery plans.

Legal teams should also consider data mapping to determine the locations where data is stored, record a description of the data and assign responsibility for maintaining the data. Although data mapping has existed for many years as a standard part of information governance, there’s been a revival to update data maps due to the rapidly accelerated expansion of technological applications deployed before and during the pandemic.

Managing eDiscovery Today

The pandemic has only added to the pressures on in-house legal teams. In-house teams increasingly work directly with outside counsel and an eDiscovery provider to aggressively manage legal spending. Using advanced software applications, often referred to as artificial intelligence or AI, to conduct early case assessments is one method for prioritizing and identifying key individuals and data sources. The more information gleaned from these early assessments, the better positioned in-house and outside counsel will be in meeting with regulators, negotiating with opposing counsel and conducting efficient and comprehensive investigations.

Alongside the expansion of remote data collections came the need to facilitate remotely managed contract attorney reviews. Document review is frequently the most costly phase in the eDiscovery process. Fortunately, advancements in eDiscovery technology and practices can lead to a more efficient process for managing review costs. A document review team is typically composed of different levels of legal professionals and attorneys. Prior to the pandemic, document review teams were composed of the best reviewers who could be recruited in a particular location. However, today, review teams are often dispersed with the opportunity for nationwide recruitment. In order to keep these reviewers aligned, a systematic, defensible approach may be considered, including:

• Identifying key custodians, issues and timelines to present the review team with enhanced context
• Prioritizing data for review and production using AI tools
• Limiting issue-tagging to enhance efficiency
• Employing intelligent quality checking at specific phases to appropriately balance review accuracy and pace
• Rigorously documenting the process from start to finish for defensibility and managing costs

The pandemic has provided an opportunity for organizations to review the people, processes and technologies that they employ throughout the information governance and eDiscovery lifecycles. Organizations may find that investing the time in regular updates to these plans pays dividends in keeping pace with the ongoing evolution in work environments.