Where is the wisdom we have lost in knowledge? Where is the knowledge we have lost in information? – T.S. Eliot

I spend most days on calls with compliance teams discussing electronic records compliance and supporting regulatory e-discovery requests that cover content ranging from emails to text messaging, to industry messaging platforms such as Bloomberg, Reuters and Symphony and trading, to financial and HR compliance documents.

Although capturing the myriad of financial and communication records has been a challenge for legal departments, tremendous strides have been made in consolidating and managing electronic records. The primary reason is that financial regulators require legal departments and institutions to produce these records within days and there simply hasn't been time to collect and organize those records after receiving an e-discovery request. Having the infrastructure and collection methodologies in place and incorporated into IT operations is seen as “best practices.”

Not only are firms able to capture electronic data, but they now have the e-discovery tools that allow them to quickly find information or, if you will, the needles in the haystack. And the challenges are many. Here are some of the issues that need to be integrated in searches:

  • Differentiate symbol-searches from word-searches. For instance, Sotheby's symbol is BID, which may need to be filtered from all other communications with the word, 'bid;'
  • Identify the language of the communication. Trading is multi-lingual, so searches need to identify the communication's language and use the appropriate language equivalent;
  • Integrate abbreviations used by traders and salespeople. Used abbreviations need to be integrated into a table of synonyms, for instance, CB (can bid), CM (call me), LDL (let's discuss later), DOL (discuss off-line);
  • Integrate changes in user's email addresses, including the ability of the search system to integrate with Active Directory aliases or other table of email variations.

These e-discovery tools not only fulfill both legal production requests, but also communication supervision. Many industries have regulations that require a compliance team to monitor and evidence-review of communications, which may involve emails relating to international gifts and entertainment (FCPA) or financial communications (FINRA Rule 3110). In the past 10 years, costs for these systems have dropped dramatically, while providing much higher levels of control and filtering. For instance, at one large institution, we were able to reduce the number of email reviewers from 25 to eight by creating more focused search expressions and, thereby, reducing the number of messages flagged.

The management consultant, Peter Drucker, rightfully wrote that we now are all knowledge workers. Everyone—from assembly line workers to lawyers—needs information to perform in the global economy. However, Drucker could not have foreseen how much electronic content would be created in the coming decades and how email and other messaging platforms would largely replace the 'letter' and hard-copy reports.

We are now seeing the beginnings of a transformation in which the e-discovery tools used by the legal team will be rolled-out to all knowledge workers within an organization. This transformation will have a profound effect upon how systems are used, the support requirement for those systems and the efficiencies gained. We have advised our clients on their long-term strategy and the necessary starting point: A commitment from the legal department and senior management.

Legal teams often work separately from the operational side of businesses and are not generally involved with the day-to-day activities of other knowledge workers. This needs to change, and the legal teams will find themselves in the unaccustomed and uncomfortable role of having to:

  • Configure permissions so that only corporate data relevant to a knowledge worker is accessed;
  • Train users as to how to structure queries;
  • Advise as to how to iteratively filter data so that the knowledge worker can arrive at 'wisdom' rather than information or, worse, data;
  • Develop policies for the knowledge worker and, more broadly, the knowledge business to utilize the institutional e-discovery system.

The Four Steps to Implementing Enterprise E-Discovery

Of course, how and where to begin? We have found the following four steps as the starting point for such a project:

1. Consolidate all data or information sources. This is a tedious process but probably best assigned to the IT Team. Each department should be interviewed for both of the following:

  • What platforms are used to conduct business? Are documents on fileshares? Sharepoint? Are collaborative platforms used such as Microsoft's Teams, Skype or Yammer; Cisco's WebEx Teams, Slack or Salesforce's Quip?
  • What type of queries are valuable for the department? Have all customer agreements containing a term or all accounts with a custodial relationship been considered?

2. Evaluate the many e-discovery platforms which are available (this may be done concurrently with the first step above).

  • How does Microsoft's Advanced e-discovery compare with Relativity, Nuix, Exterro or Clearwell?
  • What are the differences between various e-discovery vendors' capabilities and licensing terms? Some are conducive to enterprise roll-out and some focus on just the legal department.

3. Integrate the consolidated sources with the e-discovery product's indexing and search capabilities, including building the key word and metadata tables that allow for the rapid searching of data haystacks.

4. Set up a Support Team. This role may be part of either legal or compliance but will involve training and help desk support for users accessing the data.

The challenge is to balance the costs and benefits for each department. Does HR need these tools? Does investment banking? Not all departments nor even all institutions will find the investment worth the cost in either financial or organizational terms. Many knowledge workers will be left just with data.

We believe most organizations will see the value of distributing e-discovery tools to their knowledge workers, just as manufacturing companies found implementing robots greatly empowered production workers.

Not all e-discovery vendors will be able to re-tool their platforms to support large organizations, as it will involve incorporating complex permissioning and data access design. Most will, however, as they'll quickly understand the tremendous market opportunity for large e-discovery licensing and the advantage of making e-discovery an institutional rather than a legal department spend.

So, what becomes of the data Haystack in most institutions?

We believe Peter Drucker would be excited by the opportunity for knowledge workers to avail themselves of haystacks of data and use search, analytical and business intelligence tools to reduce those haystacks to the necessary needles. As robots have transformed manufacturing lines, e-discovery systems will transform the knowledge worker and deliver dramatic change in the productivity of knowledge workers and, in turn, to their institutions.

 

Douglas Weeden, J.D., is Director, Compliance & e-discovery for 17a-4, llc.