eDiscovery outlook: what’s trending in 2011?

28
Feb
2011

Bob Tennant

It’s early days but, already we are getting a real feel for the direction this year will take.  As many have noted, 2010 was a transformational year for eDiscovery.  In particular, it was the year that highly automated eDiscovery review technology – such as Predictive Coding™, as pioneered by Recommind several years ago – came into its own, with some of the world’s top law firms adopting it for every day use.

This year it’s clear that the UK’s increased regulatory landscape is accelerating the trend toward automating eDiscovery review, while the relentless growth of enterprise data will increase the advance toward a more holistic view of Information Governance.

A recent poll from the InfoRiskAwareness Project demonstrates  a growing concern for  information risk in 2011, with organisations’ greatest worry stemming from the dangers associated with technology trends in the corporate IT field, such as cloud computing.

With that in mind, there are several key trends ramping up in the 2011 eDiscovery space that enterprises need to take note of:

Regulation is overtaking litigation as the main driver of eDiscovery software purchases

Since 2008’s financial crisis, the pendulum has swung toward increased regulation in a way not seen since the 1930s.  Today, regulators are more involved than ever in the everyday operations of the businesses they regulate, and as the UK’s regulatory landscape continues to toughen up, the invasive nature of regulators will soon be fully realised.  The status and impact of the current regulatory environment must therefore rank in the higher quadrants of any large company’s 2011 risk assessment.

Regulators are gearing up

As a result of their increased enforcement activity, regulators around the globe have more information to process than ever.  And despite the common conception that the government possesses unlimited resources, most regulatory investigations are in fact assigned to a single lawyer.

The only way that agencies can fulfil their new mandate is to invest in software that allows them to quickly winnow large sets of data down to the relevant documents.  This kind of software, already in use by many regulators, will become a necessary adjunct to regulatory efforts.  And since regulators will be using highly sophisticated solutions themselves, they’ll expect companies to meet those standards too.  As a result, the regulatory drive toward modern review techniques is becoming a key driver for enterprise usage.

Companies are realising that social media is – at least for the time being – better policed through preventative internal policies than by reactive technological solutions

Human interaction is undergoing a revolution: from ‘traditional’ email to Facebook updates; from blogs to location-based social networks like Foursquare and the 140-character posts of Twitter; and from forums to Wikipedia and now Quora.  We’ve seen recently how collaborative efforts can wreak havoc on international diplomacy (Wikileaks), and on mainstream media (Twitter Breaking News).  For all its effect, however, the revolution is still ongoing, with new sites introduced every month, if not every day.  From an enterprise perspective, the pace of change is too rapid for technological solutions, leaving organisations best placed to enforce comprehensive internal guidelines to control employees’ use of social media networks.

Information Governance is emerging as the dark horse candidate for 2011’s biggest trend

For many, the only document destruction occurs at the loss of a hard drive to mechanical malfunction or the purchase of a new computer.  The world is, simply put, drowning in data, and while the cost of storage has come down dramatically in the last decade, the growth in data has been even more dramatic.  With recent year-over-year growth well over 50 percent, IDC predicts that the digital universe will reach 1.8 trillion gigabytes in 2011.  Without sophisticated solutions, companies are left with mountains of unexplored information.  And as compliance officers will tell you, the most dangerous data is data you have but don’t know you have.

Unidentified and uncategorised data presents the largest unmitigated risk to corporations and also undermines an organisations’ entire control framework.  Businesses are thus left with two major problems for the CIO and legal departments to deal with: (1) legal risk from unidentified and uncategorised data, and (2) storage costs, which include not just disk space but also maintenance and support time as well as overhead costs and energy costs, not to mention additional network maintenance costs and other, often unaccounted-for problems of unnecessary complexity.

As the regulatory environment worsens, companies are recognising the need for the same level of Information Governance they have for corporate governance.  Effective Information Governance lowers legal risk, as well as the costs of storage and response to litigation and regulatory investigation.  The benefits even extend to productivity – some of the information stored is very useful, but if you don’t know you have it, and you don’t know what’s in it, you can’t act on it.

eDiscovery horizon

Given the current landscape, if organisations have any hope of preventing data sprawl and effectively managing their information resources, then these innovative trends require innovative solutions.  Technologies like Predictive Coding are therefore not only shaping up to be this year’s primary solutions when it comes to minimising corporate information risk, but more importantly, the key to business survival in 2011.