NEW FRONTIERS IN EDISCOVERY | 19

In a global legal landscape defined by digital conversation and unprecedented volumes of data, legal practitioners need a clear understanding of the technologies available today, and what is just around the corner. When you factor in the growth of data sources, changing privacy regulations and continual technology innovation, staying up-to-date can be challenging. To help, Kroll Ontrack has captured commentary from a variety of experts to share insight into the latest technology trends, challenges and best practices.

What new data sources should now be considered in legal or compliance matters?There are infinite sources of data which can be interrogated during investigations – email, chat, social media, audio and video – with some more readily available than others for analysis. Document review platforms are quite sophisticated when it comes to reviewing and analysing email data, but many are making great headway with chat room data, as well. We are also moving towards a world where social media data (from Twitter, Skype, Facebook etc.) will be integrated with email and chat room data to provide even deeper and more holistic insight around a particular matter. Adding to that, technologies are also now pulling evidence and insight from audio and video data. The ability to pick out inflection and cadence in a voice recording, for example, is paving the way for greater analysis of phone recordings without the need to listen to every minute.

Even when advanced technologies are available, practical considerations of cost and legal considerations around data protection will always limit how far an organisation can and will go to uncover information.

Nevertheless, data is one of the greatest (often untapped) resources businesses have at their disposal, and there are endless opportunities to generate value from that data.

How are evidence streams from messaging systems impacting ediscovery?The prevalence, relevance and regulation of non-email communication formats such as chat and messaging has become increasingly important in legal and investigative matters. Traditionally, chat data has been archived, reviewed and produced in email or plain text format; however, this introduces a variety of challenges as it relates to the loss of context and chat specific metadata.

Emerging technologies are allowing us to maintain these communication types in a near-native format, empowering case teams to more easily and efficiently search, review, and produce the most relevant data in their matter while maintaining the original integrity of the data itself.

How is artificial intelligence gaining traction in legal matters?What we continue to learn is that the use of artificial intelligence in document review is not defined by a single approach; there are many hues to the technology that allow for flexibility and a scaled introduction. In fact, adoption itself has been on a sliding scale, with lawyers gaining comfort as predictive technologies are more widely used to assist with discovery. What started with simple tagging and searching has become, for many lawyers, full-scale adoption of predictive coding – the result of progressively trusting technology outcomes over a number of years.

For companies, the tipping point to using artificial intelligence tends to be awareness of its existence and knowledge of its cost savings. When that happens, they may suggest to their law firm that artificial intelligence may be suitable for their matter. Savvy law firms benefit from bringing the latest technologies – including artificial intelligence – to the attention of their clients. When it comes to best practice, it is important to ensure that the external counsel that use it are comfortable promoting its use – both in the courts and to their clients. This all-around greater awareness, combined with a long line of decisions in the United States and more recent U.K. court decisions, is driving greater interest and adoption of predictive technologies globally.

Getting Creative: Taking Technology beyond Ediscovery

20 | KROLL ONTRACK | Report

The clear benefit to using artificial intelligence is efficiency and accuracy, and achieving those benefits in turn drives the use of artificial intelligence. Whether using predictive coding in house or working with a document review service provider, the technology aims to achieve the same goals – reduce the legal costs associated with the review of electronic evidence and achieve an accurate, defensible outcome. There are now enough examples of its use across a broad spectrum of cases, in addition to refined work flows that assist legal teams with understanding the benefits it will bring to their specific case.

How are ediscovery technologies being used outside of traditional ediscovery?“Ediscovery” means many things (or a single thing) to a variety of people. Some tie it to the legal discovery procedure followed in U.S. litigation. Some associate it with the technologies used in discovery. Whatever meaning is ascribed to ediscovery, the principal concerned is usually to find evidence or facts to answer one or more questions.

Today, fact-finding is a daily exercise for most businesses, for a variety of purposes and not at all limited to understanding contentious issues. For that reason, ediscovery (or the practice thereof) has a very broad future, which is only just beginning to evolve.

Currently, ediscovery is practised by professionals working on legal cases in litigation, regulation, competition law and merger control, employment law and, to some extent, arbitration. It is also widely employed in an anticipative manner, by companies, to identify, isolate and address any concerns about compliance that can expose them to the risk of some form of intervention or sanctions.

Among these situations, litigation is the most established context, while merger control (responding to detailed requests for internal documents) is more recent. That said, wherever it is necessary to gather and analyse information in an efficient manner and answer critical questions as efficiently as possible, ediscovery technologies are certainly up to the task. The only challenge is to visualise where this technology could be applied next.

What emerging technologies and trends will the next year bring?Over the next year and for the foreseeable future, emerging legal technology solutions will be influenced by what is happening in enterprise data management. On one hand, enterprises are creating more data than ever before, and this data can be found anywhere there are storage devices to hold it – data centres, endpoint devices such as desktop computers, laptops, mobile phones and tablets, and of course the Cloud. As a result, we see a gradual move away from email being the main data source for fact-finding and instead envision a using a wider array of data sources in an integrated platform.

Additionally, as companies have become really good at creating data, the ability to locate, inventory and find the information needed at the time it is needed is incredibly complicated. There is a need for globally consistent legal technology and data intelligence solutions that can access and drive insight from this data, regardless of geographic location and storage device, and bring all of those insights together into a cohesive and usable whole.

NEW FRONTIERS IN EDISCOVERY | 21

How can technology address emerging data privacy challenges? Technology will play a vital role in helping companies comply with the tough new data protection regulations currently being implemented in Europe which have a global impact, without curtailing key business activities.

Mobile ediscovery technology can capture, process, filter and examine data onsite, avoiding the legislative complications associated with transferring data across borders. New data protection legislation also has tougher requirements when it comes to processing sensitive personal data. Mobile solutions can assist here by segregating and filtering out personally identifiable

or sensitive data, sensitive company information or privileged documents. This technology is versatile and can be used in almost any investigative situation.

The General Data Protection Regulation also has strict rules for protecting individuals’ rights to both access and delete personal data. Ediscovery technology will enable companies to quickly search for and erase this data should an individual request it. Without appropriate technology, searches could be time-consuming, inaccurate and place a company at risk of non-compliance.