To shed light on the management of dynamic electronically stored information (ESI) and its impact on legal and compliance processes, Pagefreezer hosted a webinar featuring Mike Quartararo from ACEDS (Assocation of Certified E-Discovery Specialists), Michael Simon from Seventh Samurai Legal Consulting, and Peter Callaghan from Pagefreezer. During this webinar, they shared learnings from a recent report focusing on dynamic data trends in e-Discovery and shared their thoughts on those findings.
Missed this session? This blog post summarizes the key takeaways from the webinar and highlight some noteworthy points made by our panelists.
Defining Dynamic ESI
Before diving into the key insights of the Webinar, it’s important to first define the term “Dynamic ESI” used throughout. Dynamic ESI refers modern online data that is constantly evolving, characteristics include:
- Electronically stored information that remains in a cloud-based environment, owned by a 3rd party
- A mix of content types (text, images, GIFs, videos, attachments, etc.)
- There’s real-time activity — elements like comments are constantly added, edited, and deleted
In today's era, where digital communications reigns supreme, these data sets are seamlessly stored, shared, and accessed through various software platforms, leaving us unable to escape the omnipresence of dynamic ESI.
In fact, the term ‘eDiscovery’ wouldn’t exist without electronically stored information (ESI)—the process would simply be referred to as legal discovery and would exclusively deal with paper and physical documentation. So, pretty much any information that isn’t in physical form is considered electronically stored information.
Which types of ESI are classified as dynamic? The sources mentioned below possess this dynamic quality as they are in flux and iterated upon based on activity or engagement.
- Social Media Platforms (Facebook, Instagram, Twitter, LinkedIn)
- Video Marketing Apps (YouTube)
- Enterprise Collaboration Tools (Slack, Teams, Workplace by Meta)
- Chat Applications (WhatsApp, WeChat)
- Text Messaging
- Sound Recordings & Voicemails
- Data from Smart Devices (Doorbells, Smart Watches, Smart Appliances, etc.)
- Database Information
- Electronically Shared Files & Word Processing Documents
Key Insights on How Organizations Manage Dynamic ESI
During the webinar, the speakers made numerous references to a research report carried out in partnership between Pagefreezer and ACEDS. The analysis involved two focus groups of in-house legal professionals and law firm representatives, along with a subsequent survey, to gain insights into how organizations manage dynamic ESI in e-Discovery projects. The valuable findings were compiled into a report that sheds light on the challenges faced by the legal community.
Here are some of the key takeaways that were noted:
1) There is a Major Shift in Communication Channels
The pandemic accelerated the adoption of remote work and increased the reliance on online collaboration tools. Applications like Slack and Microsoft Teams have become essential for informal communication within organizations, often replacing traditional email channels. This shift is forcing eDiscovery professionals to once again redefine what constitutes a document, or, taking it one step further:
"It's time to leave behind the concepts of documents. We're no longer dealing with documents; we're dealing with extensions of systems [like OneDrive, MS Teams, Slack, Google Drive, SharePoint, etc.]." - Michael Simon
2) Challenges of Identifying and Collecting Website Data
Website data has become much more common in legal matters, particularly in cases involving misleading product claims. The audience poll indicated that a significant portion found it somewhat or very difficult to identify, preserve, and collect website data for legal matters.
"We're seeing more litigation around websites and the promises made on websites. It could be a challenge for organizations to handle this data effectively." —Mike Quartararo
3) Shifting Notions of Scope and Data Preservation
The speakers emphasized the need to update perspectives on the scope of discovery. Collaboration apps, personal devices, and other dynamic data sources should be considered discoverable. They also stressed the importance of preserving data properly to maintain its integrity for potential legal proceedings.
"Anything that's relevant to a legal matter, investigation, or regulatory inquiry can be considered in scope. We need to help people understand what could potentially be in scope." —Peter Callaghan
4) The Raising Importance of Data Policies
With the continuous growth of data generation, the importance of data retention policies becomes even more critical. Various factors come into play when determining these policies, and eDiscovery is just one of them. Michael Simon highlights the historical challenges faced in promoting information governance, but the landscape has drastically changed due to concerns surrounding cybersecurity, data leakage, and privacy. While organizations now understand the urgency of managing data and minimizing unnecessary collection to safeguard sensitive information, their biggest obstacle in managing data volume is the lack of clarity in defining which data to retain and which to dispose of, as well as enforcing such policies.
"People aren't incentivized to get rid of things, but with cybersecurity and privacy concerns, information governance has taken center stage." —Michael Simon
5) Exploding Data Volumes
The volume of dynamic online data has been rapidly growing, driven by the proliferation of digital communication channels and remote collaboration. The study revealed a consensus among respondents that data volumes have increased significantly in the past year. Here’s what Michael Simon shared when asked about the increase in data volume in relation to most e-Discovery projects in 2023:
"Yeah. It’s only increasing, and it’s never going back. This is not a wave, folks. Waves recede. This is the new high water line." —Michael Simon
The Role of Information Governance in e-Discovery
It should come to no surprise that managing vast volumes of data while ensuring compliance with legal and regulatory requirements has been a daunting task for many organizations. The dynamic nature of various technologies and the proliferation of data across various platforms present new challenges in information governance. Here's are the tips the panelists shared on how organizations can (and should) do to set themselves up for more streamlined processes on the left side of e-Discovery.
“The volume is what the volume is. We don't think that's going to change, but what you can do as an organization to help yourself is to really understand what data you have, where you have it, how you can get to it, and how you can manage it in a way that keeps you out of trouble.” —Mike Quartararo
Improve Relationships with Records and IT Management:
Collaboration among different teams, including legal, records management, and IT, is crucial for effective data management. The panelists emphasized the need to work closely with these stakeholders to develop clear policies, consolidate platforms, and establish robust data management practices. This collaboration ensures a shared understanding of data management objectives and facilitates smoother implementation.
Develop Clear Retention Policies:
To navigate the complexities of data preservation and collection, organizations must develop specific retention policies. These policies outline how long data should be retained, what types of data should be retained, and any legal obligations associated with data retention. By having well-defined retention policies, organizations can streamline their data management processes and avoid unnecessary accumulation of data.
Provide Training and Ongoing Education:
Continuous education and training programs play a crucial role in enhancing data management practices. By raising awareness of legal obligations, privacy considerations, and proper collaboration tool usage, organizations can equip their staff with the knowledge necessary to navigate data management challenges. Training programs should be tailored to different roles and regularly updated to keep pace with evolving data management trends.
Streamlined e-Discovery starts with a proactive and strategic approach to Information Governance, which often falls outside of the purview of a legal team, however, that shouldn’t deter e-Discovery professionals from influencing policies, facilitate stronger commuications and collaboration amongst teams, and provide continuous education on data management from a legal perspective.
Dynamic ESI: Leveraging Technology for e-Discovery
As organizations navigate the complexities of eDiscovery in this era of data volume and data source growth, it is crucial to build relationships, policies as well as enforce those policies.
Legal professionals can also leverage specialized tools to help them identify, preserve, collect, and review this data efficiently.
It has to be added that not all eDiscovery products are created equal, but the best solutions will create a database of saved records that retains the native look and feel of the collaboration platform, as well as the context and relationships of data and users so that legal teams do not need to put humpty dumpty back together again.
Comprehensive solutions like Pagefreezer are designed to address the challenges posed by high volumes of dynamic data from a variety of sources. Here’s what you’ll gain:
- Wide Coverage of Dynamic ESI: Capture and archive data from various sources, including websites, social media platforms, collaboration tools, instant messaging apps, and more.
- Real-time Capture: Automatically capture and retain data as it is generated or updated, ensuring that no critical information is missed.
- Comprehensive Archiving: Ensure the integrity, authenticity, and tamper-proofing of captured data. Securely store archived data in compliance with industry standards and regulations, such as WORM (Write Once, Read Many) technology and legal admissibility standards, making it a reliable source for eDiscovery purposes.
- Advanced Search and Retrieval: An intuitive interface and advanced search functionalities allow users to quickly locate and access specific information across all archives, accounts, direct conversations, timelines, and groups.
- One-click Legal Holds: Place users and data on legal hold to prevent the deletion of crucial evidence
- Preservation of Metadata: Capture and preserve metadata of dynamic ESI, including timestamps, user information, and other contextual details. Records are time-stamped and signed with a SHA-256 digital signature.
- In-Context Review: Instantly select relevant content, add comments, and export files to local servers for eDiscovery purposes. All data is presented in original context.