legal research

While COVID-19 is 2020's "crisis de jour," business interruption happens far more often than people think. The worst disasters always have the same effect: stopping business functions dead in its tracks. When they strike, companies need to be ready.

The COVID-19 pandemic has proven to be a test for many organizations on their process resilience. It has forced many large businesses to shift their workforce to work from home, small businesses to shut down temporarily, supply chains to rethink how they operate, and the travel industry to go on an almost complete hiatus. It has caused trillions of dollars in economic damage in its first three months alone, and the carnage is not close to ending. 

Companies who had business continuity plans in place were able to act quickly to mitigate the damage done to their companies. The COVID-19 pandemic is not the first disaster that has caused companies to execute (or first think about) how, when and where they operate in the face of business interruption. In the past two years alone, we have faced earthquakes in Puerto Rico, flooding in the south, and tornadoes in Tennessee. 

Hurricane Sandy flooded the NYC streets, basements, subways, and tunnels, blacking out most of Lower Manhattan. The New York Stock Exchange and Nasdaq were closed for several days. The storm cost New York City an astonishing $19 billion, New York State an estimated $32 billion, and the U.S. economy $65 billion. What was traditionally an unlikely disaster scenario, business interruption, and the subsequent need for business continuity and resiliency is now part of corporate life.

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Business Continuity: Is Discovery Part of Your Plan?

Having a business continuity plan for your company has many benefits. One of the most obvious is that your business can continue its everyday operations across many departments, customers, and third-party partners. As any corporate can attest, e-discovery is a messy, technology-heavy, and expensive business that requires costly and complex tools, complicated workflows, and specialized teams. Unfortunately, e-discovery is often not considered a "mission-critical" function that demands the same level of process management and contingency planning as other functions like mail and communications, payroll, health and safety, or order management. 

As seen recently with the COVID crisis, e-discovery has been overlooked in business continuity planning. This is a mistake, as corporations have a duty to preserve ESI relating to litigation and regulatory inquiries, and legal deadlines to meet. Failing to carry out this responsibility risks evidence spoliation, incomplete legal strategy, and sanctions from courts and governmental agencies.

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E-Discovery Business Interruptions

Courts, regulators and counsel have little tolerance for missing deadlines when processes fail. Like their business counterparts, if legal systems go down or are inaccessible, it can represent risk of data loss, lost productivity and, potentially, downstream problems with judges or regulators. 

Disasters like COVID cause a myriad of problems for legal teams. Since most attorneys are still working, albeit remotely, their case preparation continued. ESI preservation and collections are still taking place, but at sub-optimal forensic standards. Examples shared by legal teams include:

  • Interviewing custodians remotely. With employees working remotely, attorneys and their forensic counterparts were not able to conduct traditional interviews and review of potential ESI.
  • Inability to take physical possession of evidence or perform remote preservations, holds and processing, due to social distancing or travel restrictions.
  • Reliance on "self-collections," where Custodians are taught how to self-collect over the phone, using native applications that were never designed to do such work. In several cases, custodians had to install tools like FTK to do the job themselves.
  • Use of web conferencing applications not designed for remote data transfers. Forensic teams had to make do with web conferencing technology to perform "remote" collections; one technologist spent 8+ hours on a NetMeeting to perform an acquisition—for each of the 6 custodians!
  • The need to go on-site anyway. Many forensic tech consultants took the "critical employee" route, going on-site to perform traditional collections, putting themselves in harm's way of potential COVID exposure.

The resulting risks?

  • Tradition on-premises collection tech that required physical access to the equipment went uncollected;
  • Technologists at risk when social distancing was not possible, and may open their firms to workman's compensation claims and lawsuits;
  • Defensibility and completeness degradation;
  • Spoliation and lack of a defensible chain of custody; and
  • Inability to meet court or regular-imposed deadlines.
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Enter Intelligent Automation

Foreword thinking GCOs and CISOs are exploring automation to their internal processes. Like their business process automation peers in manufacturing, procurement, and finance, these tools can mitigate the complexity inherent with the e-discovery process. 

Business automation eliminates the operational steps and manual aspects of e-discovery so legal teams can focus on case strategy, risk management and outcomes rather than hustling data across a variety of systems. 

Automation tools transform repetitive manual tasks into streamlined, computer-operated processes. Automation enables firms to produce goods or outcomes at a lower cost with greater visibility into the process. Intelligent automation goes a step further, moving data across systems, running assurance checks, restarts, and exception handling. The team's only spend time on the variances. 

In the e-discovery world, intelligent automation can reduce costs by as much as 45% by:

  • Centrally managing and controlling processes like legal hold, processing, ECA, review and production in one single-sign-on platform;
  • Performing remote preservations and collections;
  • Executing operational steps consistently across third party vendors; with a centralized dashboard to monitor failures;
  • Processing reconciliation and automated quality control;
  • Reporting on exceptions and variation alerts; and
  • Mitigating the need to hire expensive personnel with specialized skills.
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Conclusion

Many forward-thinking companies are deploying solutions to automate e-discovery processes and at the same time ensure they can continue during interruptions like COVID. Industry commentator Rob Robinson defined discovery automation technology as "technology that decreases the requirement for human intervention in the completion of discovery tasks and processes," which is consistent with the goals of disaster continuity. Intelligent automation as a function of business continuity enables users to:

  • Collect data from anywhere. Most employees can work their corporate networks remotely, but the forensic collection of that data has required direct access to those servers.
  • Send, manage, and escalate legal holds across multiple regions, systems, and entities from a single platform.
  • Connect fragmented e-discovery toolsets, from legal hold solutions to remote collection to processing through review and production.
  • Do more with less. With an end-to-end automation platform, two the three professionals can do the work of 10 people to operate the process. Automation tools are template-driven, which reduces need for specialized knowledge of fragmented toolsets. 
  • Trigger an entire process from any location with five clicks or less, from case configuration, legal hold, collection, processing and review enablement in tools like Nuix and Relativity can be performed and monitored remotely.
  • Make deadlines even when people are out or remote; and
  • Reduce cost at a time where revenues may be strained. Intelligent automation reduces costs from 45% up to 80%, regardless of the crisis.

Anil Kona, CEO of Vertical Discovery, whose software product Optimum specializes in intelligent automation, legal holds and remote preservation/collections, comments that, "The continued adoption of cloud computing remains to make traditional digital forensics obsolete. Requiring physical possession of equipment is not necessary anymore, as remote and cloud-based services have become the norm for in-place search, preservation and collections in a forensically sound manner."

E-discovery automation is a relatively new category, but one to watch closely in the years to come. The parallel benefits with its cousin, business process automation, should not be ignored. With remote capabilities, the need for less staff and training, a significant reduction in overhead costs, and increased odds of mitigating the downside of another crisis like COVID-19, this technology represents the next stage in evolution for legal teams, departments, and service providers as they race to keep up with ESI's exponential growth and the judiciary's growing understanding of its impact on litigation.

Recent events demonstrate that pandemics, weather events and other disasters are becoming much more common and can cripple companies that are not prepared. Once a "nice to have," IT leaders across the globe have increasingly embraced business process continuity and planning as a necessary arrow in their quiver. As companies continue to insource their discovery function, automation tools are likely to gain in prominence and significance as part of a holistic approach to legal continuity and cost control.

Sean Byrne is an attorney and consultant with over 22 years of experience in eDiscovery, Data Analytics, Forensics, Data Privacy and Cybersecurity. Prior to founding Byrne Law, a process-driven, technology-enabled law firm, Sean was Head of eDiscovery for Nuix, Director of eDiscovery for Axiom Law, a Manager with KPMG's Forensic Technology group, and the Technology Committee Co-Chair for the Seventh Circuit's Electronic Discovery Pilot Program.

Tom Matarelli leads Vertical Discovery's global sales and marketing efforts, focusing on growing the corporate client base with their Optimum product suite.