A large financial services firm engaged an outside attorney and eDiscovery provider for an internal investigation into trading activities that may result in the need for regulatory disclosures and civil suits. This was the company’s first major investigation since the onset of the COVID-19 pandemic, and it quickly became apparent to the in-house legal team that their information governance and eDiscovery plans were compromised. prior to March 2020 required an update to reflect significantly changed functionality. environment. The policies had to account for nearly two years of remote working for almost all employees and the subsequent hybrid structure of part-work from home (WFH) and part-work in the office. Among the first steps taken were the retention and collection of data from key individuals identified as participants in the relevant trades, followed closely by intensive early case assessment to quickly find the facts and manage the costs. The internal team took care to take a fresh look at each step of the process. The goal was to avoid reverting to the default way things had always been done and to arrive at a process suited to the “new normal”.
Governance, Preservation and Information Gathering Today
As we all know, the pandemic has imposed a remote work environment, virtually overnight, on many workplaces, especially those in professional services. Some of the unexpected benefits arising from this imposition were the many examples of increased productivity and efficiency achieved through the use of technologies (both common and newly developed) that previously had limited prevalence in these industries.
Current information governance and eDiscovery plans are updated to address new challenges in managing data sources and identifying data for investigations, litigation, and compliance. Additionally, ongoing data privacy and cybersecurity concerns, including responding to data subject access requests (DSARs), present issues that may require changes to “standard” policies and procedures.
Retention, legal retention, and data collection have undergone significant changes since March 2020, when WFH suddenly moved from Bring Your Own Device (BYOD) to Bring Your Own Office (BYOO). Legal holds notices can now focus more on data and documents stored outside of an organization’s data servers and offices. Pre-pandemic data collection mainly took place on site; however, the pandemic has demonstrated that organizations should consider WFH when considering best practices for retention and collection. New strategies and processes were needed to perform remote data collections, especially from mobile devices, cloud storage, and local storage on devices outside the organization’s network. Remote data collections should be considered when updating your information governance and eDiscovery plans.
Legal teams should also consider data mapping to determine where data is stored, record a description of the data, and assign responsibility for data maintenance. Although data mapping has been around for many years as a standard part of information governance, there has been a revival to update data maps due to the rapidly accelerating expansion of technology applications. deployed before and during the pandemic.
Managing eDiscovery Today
The pandemic has only added to the pressures on internal legal teams. Internal teams are increasingly working directly with an outside attorney and eDiscovery vendor to aggressively manage legal spend. Using advanced software applications, often called artificial intelligence or AI, to perform early case assessments is one method of prioritizing and identifying key people and data sources. The more information gathered from these early assessments, the better able in-house and outside counsel will be able to meet with regulators, negotiate with opposing counsel, and conduct effective and comprehensive investigations.
Along with the expansion of remote data collections, there has been a need to facilitate reviews of contract attorneys managed remotely. Document review is often the most expensive phase of the eDiscovery process. Fortunately, advances in eDiscovery technology and practices can lead to a more efficient process for managing investigation costs. A document review team is usually made up of different levels of legal professionals and lawyers. Before the pandemic, document review teams were made up of the best reviewers that could be recruited from a particular location. However, today review teams are often dispersed with the possibility of nationwide recruitment. To keep these reviewers aligned, a systematic and defensible approach can be considered, including:
- Identify key gatekeepers, issues, and timelines to present the review team with improved context
- Prioritizing data for review and production using AI tools
- Limit issue tagging to improve efficiency
- Using smart quality control at specific phases to appropriately balance exam accuracy and pace
- Thoroughly document the process from start to finish for viability and cost management
The pandemic has given organizations an opportunity to examine the people, processes, and technologies they use throughout the information governance and eDiscovery lifecycles. Organizations can find that investing time in regularly updating these plans pays dividends by keeping pace with continuously changing work environments.
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This article by Mayer Brown provides information and commentary on interesting legal issues and developments. The foregoing is not a complete treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action regarding the matters discussed here.