RoadClouds

As two sides of the information lifecycle, information governance and e-discovery are among the best tools corporations can use to stay ahead of their litigation and regulatory risks. But at the “Where's our Flying Car? Charting a Path to Secure, Seamless Enterprise Discovery” session at Legalweek 2018, in-house, vendor and law firm professionals explained why such tools will always struggle to keep up with corporate needs.

Hal Marcus, director of product marketing at ‎OpenText Discovery, noted that the fundamental problem for information governance and e-discovery programs is that “the target is always moving. By the time I come up with a plan to tackle 'Challenge X,' it's a year later, I've got all the approvals and the budget, but now we're on to 'Challenge Y.'”

In no small part, new challenges arise because of the speed at which new data sources and types are entering corporate data ecosystems.

“Once upon a time, there were five core sources of e-discovery. … But business and technology change,” said Sharika de Freitas, senior manager of discovery solutions and technology at Viacom.

“You can't really blame technology” for new data sources entering organizations, she added. “It really comes down to a social problem of understanding what people are doing and why they are doing it” in terms of using new data sources. (She also stressed that her opinions during the session were her own and not that of Viacom.)

De Freitas explained that, to understand what data sources may be coming into one's organization, companies need to monitor employee activities and educate them on how to handle new data sources.

Still, though companies can understand their data sources, managing or collecting from them can be a while different story. De Freitas noted that many e-discovery and information governance technology solutions likely won't be updated to handle the most novel data sources or types until they become more common in the economy.

While technology may not be able to help in all situations, having a robust information governance program is still sure way corporations can better manage the risk they face by new data.

“If you know where the data you care about is, it doesn't matter about the stuff you don't care about,” said Ethan Ackerman, an associate at Morgan Lewis.

He explained that not all data will be relevant to litigation or investigations, and having data in-house that is unable to be easily collected or managed is a manageable risk if you know its location.

Jay Brudz, partner at Drinker Biddle & Reath, added that, in today's legal industry, parties aren't expected to be able to preserve or collect every single type of data they hold. He cited the 2015 amendments to the Federal Rules of Civil Procedure as allowing parties to “get a handle on e-discovery.”

But even with the move to proportionality in e-discovery, corporations should still be prepared to collect or manage their new data sources if the need ever arises. For de Freitas, this means making sure third-party data sources have application programming interfaces (API) or other ways teams can tap into their information. She explained, “You can have all this wonderful indexing, take your cloud and make it elastic as possible, but if you can't get the line of sight into that information,” that is going to be a problem.