Privacy and Communication in the Age of Electronic Discovery

Most criminal and civil lawsuits begin with the “discovery” phase which takes place before trial and requires those on both sides of the lawsuit to provide any information and documents that may serve as evidence. Electronic discovery, commonly known as eDiscovery, refers to the discovery of any electronically stored information (ESI). ESI generally includes emails, text messages, and messaging apps in addition to databases, spreadsheets and any other digital files. 

While companies are required to capture and archive electronic communications for this purpose (among other reasons), the proliferation of mobile devices and messaging apps has complicated companies’ abilities to track employee activity. In addition, the huge amount of electronic data produced has raised concerns about privacy violations and the ability to share privileged information securely. 

Electronic Discovery Laws & Procedures

Discovery is an age-old part of the legal process, but eDiscovery brings the procedure into the modern age. In the traditional discovery process, each party involved in a lawsuit can request information from the other side or from outside witnesses. This would usually result in witness interviews and presentation of tangible documents and evidence. 

Why is eDiscovery Important?

The eDiscovery experience is slightly different in that the materials being shared are electronic and intangible. Any electronically stored document, e-mail, instant message, video, images, or database that could serve as evidence in a lawsuit would need to be provided during the eDiscovery period. In a typical case, eDiscovery data can be in the range of 100 gigabytes, or 6.5 million pages of Word documents. To further complicate the issue, eDiscovery requirements include strict timelines that must be adhered to at the risk of penalties or fines. 

All of this means that companies could be in the position to have to sort through tons of data to find the relevant evidence they are asked to present, all in a very short time frame. 

Impact of Electronic Discovery on Communication Privacy 

The sheer amount of electronic data created during the day-to-day activities of any firm increases the risks of accidentally sharing privileged information during the eDiscovery process. Fortunately, there are steps that companies can take to ensure that they protect their clients’ and employees’ privacy as much as possible while complying with eDiscovery litigation requests. 

eDiscovery and Privacy Risks

When eDiscovery materials are being transferred from one system to another, there is a risk of data leakage or theft. Because these materials usually include highly sensitive information like intellectual property or financial information, eDiscovery legal repositories are a gold mine for cybercriminals who are always on the lookout for new opportunities. 

Many companies choose to outsource the eDiscovery process to third-party vendors. While many of these vendors are reputable and have the required knowledge and expertise to manage data protection, concerns remain about eDiscovery practices that fail to fully address privacy requirements. At the end of the day, the onus is on the relevant attorney to maintain client confidentiality, and there can be serious repercussions to privacy breaches. 

Best Practices to Safeguard Communication Privacy 

Companies and lawyers can take the following steps to reduce the risks of privacy breaches during the eDiscovery process:

• Only provide access to ESI on a strict need-to-know basis, restricted to certain computers in a secure area. 
• All data should be encrypted with any digital copies destroyed as soon as the litigation is complete.
• The company must assess any security and privacy controls that are used by any eDiscovery vendors.
• An agreement should be made between parties on both sides of the case that they will return any privileged material that is inadvertently shared with them. 
• Companies should take advantage of technological tools that can assist in the eDiscovery process. 

Emerging Technologies in Electronic Discovery 

Requirements to capture and store communications is not a new phenomenon, but the legacy systems that many companies have in place were not designed to handle the massive volume and range of types of data that is created today. What began as a haphazard approach with companies purchasing separate solutions to archive information from each communication channel, is slowly moving to end-to-end solutions that can simplify the entire eDiscovery process and keep companies in compliance. 

These solutions tend to be cloud-based for maximal storage and easy retrieval and rely on artificial intelligence and predictive analytics for fast searching and analysis to draw out the most relevant information. The benefits of such modern eDiscovery tools include:

 

• Preservation of Context – it’s possible to review and present information from a range of different channels without losing the important context that might help in the case.

• High-powered Search – results in a matter of minutes as opposed to the hours or days that a manual search might take.

• Legal Holds – legal holds can be placed across any content sources to make sure accuracy is preserved and no unauthorized changes can be made.

• Exports – the data can be shared quickly and efficiently to make sure all deadlines are met. 

What’s a Company To Do?

Companies must be prepared to answer eDiscovery requests at any time. Any company that is already in full compliance with regulations relating to capturing and archiving electronic communications should, in theory, be well-positioned to respond to eDiscovery requests quickly and easily without risk of privacy breaches. 

 

Get ahead of the game by using LeapXpert’s Communication Platform to make sure your electronic communications are all stored and accessible in full compliance with global and local regulations.