By Robert Cruz, Senior Director of Information Governance, Smarsh
New categories of electronically stored information are quickly posing new sources of risk, not only for e-discovery within civil litigation, but also regulatory and internal investigations, as well as Freedom of Information Act requests.
Proactive archiving makes responding to e-discovery events less expensive, simpler, and faster to complete. But many organizations remain stuck and unable to capture the flow of new digital communications being deployed by their workers. Current challenges include vast volumes of content generated by personal mobile devices, popular workplace collaboration platforms such as Slack and Microsoft Teams, and even the growing use of artificial intelligence and machine learning systems.
The near ubiquitous use of personal mobile phones for texting and voice messaging has created a critical focal point for e-discovery. Mobility is not just some future trend that is creeping up on us – it is a mission-critical platform that’s used pervasively by nearly every employee today.
Many organizations still deal with the collection and preservation of mobile content through legacy digital forensic services and tools. But all too often, that extracted data can be returned as incomplete or garbled. Organizations would be better served by performing a mobility assessment to first understand how their employees are really using sensitive company content on mobile devices. Then they can perform due diligence to research modern compliance technologies that would enable a more proactive approach.
Another big struggle involves the proliferation of collaboration tools, which present a different kind of problem than capturing standard messages such as emails. Collaboration platforms like Slack and Microsoft Teams enable distributed groups to work together virtually. But in so doing, they often contain complex persistent chats and multiple versions of content that’s generated through app sharing.
An even harder riddle involves how to capture and interpret conversations that are encoded in emojis. This issue has become a real concern for judges, law firms and e-discovery practitioners who work in the trenches. What are we to make of emojis that show a book and an airplane paired together? Does it mean to book a flight? Or to read on the plane? The long list of potential emoji combinations continues to grow, creating still more complexity.
Systems for artificial intelligence and machine learning are in the early days of development for most organizations. However, AI adoption is accelerating by many businesses to generate a competitive advantage across almost every industry. One challenging use case involves the limits of human reviews of keywords against massive sets of big data involving an enormous variety of data types. As companies continue to experiment with AI, many other types of compliance concerns will undoubtedly emerge.
Closing the Digital Gaps for E-Discovery
We know that significant gaps exist as these new communication channels get more widely adopted. The first issue is a pure knowledge gap, based on a limited awareness by discovery practitioners about what types of proactive archiving solutions are available in the market to solve these difficult problems, especially in terms of personal mobile devices. The next layer involves a policy gap based on uncertainties about the proper ways for organizations to revise their communications policies in reaction to new communications channels. Lastly, there is a clear technology gap for the users of current review tools, which are simply unable to capture and control all the modalities accessible to users today.
Here are a few practical tips to regain control over these emerging e-discovery challenges:
Dig into the Compliance Impacts of New Collaboration Tools. Legal and compliance teams should be actively engaged in evaluating new tools that are used in the workplace such as Microsoft Teams, Slack, Cisco WebEx Teams, Workplace by Facebook, Wrike and Jira. It’s essential to know if their capabilities are impacting preservation and retention practices. That’s why it’s so important to deploy a reliable means of capture and preservation beforehand, rather than exposing any retention shortcomings during a serious litigation event.
Don’t Forget the People and Process Elements. It’s best to establish central points of control where all communication sources can be preserved and reviewed within a single interface. It’s also important to continually update policies and procedures while providing ongoing user trainings about acceptable and prohibited uses of specific communications tools.
Assume That Content Will Live in Multiple Locations. Advances in communications and collaborative technologies are now being developed and used outside the perimeter of many e-discovery practices and current capture and review technologies. This is particularly true in areas such as AI and ephemeral messaging, in which the messages disappear shortly after being received. Shifting demographics are creating a demand for immediacy in communications that will continue to make the list of content types increasingly dynamic.
Legal and compliance teams should take proactive steps now to partner with the business side of the house. Not only will this help solve e-discovery challenges in the future – it will accelerate innovation while addressing the changing demands of both customers and employees.