Why E-discovery Is Now a Ubiquitous Requirement

Many people may think of e-discovery as a requirement associated with highly regulated industries, or headline-grabbing blockbuster legal cases such as the Enron and WorldCom scandals. Unfortunately, that’s a myth. Runaway growth in digital data, together with growing regulatory requirements and workplace litigation, are making e-discovery a ubiquitous requirement.

As a result, litigation and e-discovery are common among all kinds of organizations, even those that aren’t public companies or heavily regulated, said Garth Landers, Mimecast’s Director Product Marketing, Archiving. “It really is quite pervasive, and a natural part of business life,” he said.

The most common business-related issues include lawsuits related to wrongful termination, ageism, sexual harassment, and other workplace violations, he said. “These are the types of use cases and incidents that really drive the growth in e-discovery and make it, sadly, very universal,” he said.

Data Explosion Makes E-discovery A Struggle

The continuing explosion of data means that legal cases increasingly require gathering data that’s not on paper, but in bits and bytes. As a result, the legal world is facing its own digital disruption—one that parallels the changes happening across all businesses—and e-discovery has become an essential tool for building cases.

That data growth isn’t going to stop any time soon, in part because the average user is projected to have 15 connected devices by 2030;[1] IDC forecasts that data stored worldwide will balloon to 79.4 zettabytes (one zettabyte is one sextillion bytes) by 2025.[2]

“Every year we seem to have more emails and other electronic documents than the year before,” said Genevieve Moreland, a discovery counsel at Crowell & Moring in Washington D.C. “It’s become more important than ever to look at all of the available tools to help cull this growing data volume to a more manageable size, both to save costs on storage of the data and time in reviewing it,” she said.  

As more applications are approved by companies for business use, sources of relevant documents keep growing, she noted. Legal counsels and organizations will have to “master the art of disappearing data” as more consumers use encrypted messaging services that include auto-deletion features, according a legal technology survey from the accounting firm BDO.[3] “Discovery will have a reckoning with encrypted and ephemeral data in 2020,” the report concludes.   

As storehouses of data continue to expand, they will spur more demand for e-discovery tools together with email archiving software for compliance and case management. A recent survey from research firm MarketsandMarkets forecast that spending on e-discovery services and technology will grow by 10% a year through 2023, due to factors such as increased regulation and growth in connected devices that generate more data.[4]

New Requirements Emerge

At the same time, new sources of litigation and growing regulatory requirements increase the likelihood that organizations will have to hunt for the needle in the haystack—and do it more often.

Workplace lawsuits charging discrimination, harassment or unlawful termination have become commonplace.[5] In addition, according to BDO, companies face increasing scrutiny about bias in the AI that’s now widely used for purposes such as recruiting. “There will be litigation about underlying biases in AI, which present significant new challenges for discovery,” according to BDO’s forecast.[6]

An Outbreak of Pandemic-Related Lawsuits

The COVID-19 pandemic is leading to a new outbreak of litigation: By mid-June, more than 3000 legal complaints related to COVID-19 had been filed around the U.S., according to one legal database.[7] Class action lawsuits range from essential workers who sued for hazard pay[8] to a price-gouging suit accusing a grocer of doubling the price of toilet paper.[9]

Employers may face further legal concerns as they take steps to allow employees to return to work safely. For example, they many organizations are expected to collect more health data on individuals, according to a Gartner Inc. survey, which found that 59% of business legal counsels are considering or currently collecting employee coronavirus test results as part of their reopening efforts.[10] New laws related to the emergency are also a source of concern.[11]

New Regulations Add to the E-discovery Burden

New data privacy laws such as Europe’s General Data Protection Regulation (GDPR) and the California Consumer Privacy Act (CCPA) add to the burden and cost of e-discovery, since they mandate that organizations track, report and delete personal data at consumers’ request. Failure to comply makes them subject to fines; California began enforcing CCPA July 1, with penalties up to $7,500 for each violation.

Even though the e-discovery process seems simple on the surface—find and produce emails and other documents—in practice it’s often costly and disruptive, said Landers. For IT, it’s a slog to comb through terabytes of information—and it takes staff away from higher-value activities such as developing new systems.

That’s why technology that speeds e-discovery and reduces its cost is so important. Technology assisted review tools can be very helpful in managing compliance with data privacy laws, said Moreland. They can help to quickly identify sets of data that need to be examined to ensure companies are not violating the regulations, she said. Though it may be possible conduct some discovery without such technology, staff could end up reviewing a significant number of documents that have no relevance while missing a significant amount that are relevant, she said. She noted in her experience, review tools are just as accurate as a human review team and can move through data sets faster.

The Bottom Line

E-discovery is already a pervasive requirement for organizations of all sizes, in many industries—and new privacy requirements and potential sources of litigation threaten to further increase the burden. Technology that helps manage and quickly find relevant data can help speed e-discovery processes—and reduce the cost.

[1] “The Internet of Things: A Movement, not a Market” IHS Markit Technology

[2] “The Growth in Connected IoT Devices is Expected to Generate 79.4ZB of Data in 2025, According to New IDC Forecast,” BusinessWire, June 19, 2019

[3] “E-Discovery (& Beyond) Forecast: 5 Legal Technology Predictions For 2020,” BDO survey

4 “eDiscovery Market by Component- Global Forecast to 2023” MarketsandMarkets

[5] “Workplace Class Actions: The Threat Keeps Growing.” CFO Magazine, Jan. 15, 2020

[6] BDO survey

[7] COVID-19 Complaint Tracker, Hunton Andrews Kurth

[8] “AFGE Sues Government for Hazard Pay for Feds Working Through Coronavirus” April 6, 2020

[9] “Albertsons Class Action Cites COVID-19 Price-Gouging” Top Class Actions, June 5, 2020

[10] “Gartner says Legal & Compliance Leaders Are Least Prepared to Address COVID-19 Employee Safety Decisions Associated with a Return to the Workplace” May 1, 2020

[11] “What you should know about COVID-19 and the ADA, the Rehabilitation Act and Other EEO Laws” U.S. Equal Employment Opportunity Commission