CDS was proud to be a Gold Ambassador at the 10th Annual EDI Leadership Summit which went virtual for the first time. The organizers do a great job of bringing together the right people seeking to solve problems with the aid of technology, and we always appreciate the opportunity to participate. This year, Bill Belt, Managing Director, Consulting at CDS, led a timely discussion with a panel of corporate eDiscovery experts from FedEx, Barclays, Exelon and Chevron on what to expect for the future of discovery in the cloud. 

A number of CDS colleagues also attended the program and they reported back on their experience and shared their impressions, including:

• Bill Belt, Jr., Esq., Managing Director, Consulting
• Matthew Knouff, Esq., VP and eDiscovery Counsel
• Cory Logan, Director of Managed Services
• Chris O’Connor, Director of eDiscovery Strategy

The group came up with a number of key themes and takeaways, which we’ve summarized here.  

Sustainable Innovation Versus Disruptive Innovation

Bill Belt: I think we’re seeing a huge shift from what now sounds like a buzzword, even looking back on it from a year ago – ‘disruptive’ technology and ‘disruptive’ processes – to processes that need to be actionable. Disruption only gets you so far. Once something has been disrupted, you have to figure out what to do next. 

Matt Knouff: All these new ediscovery tools and technology – a lot of it can be disruptive. Many corporations seem to want to take small steps, using their in-house resources, to pursue sustainable, incremental innovation. Corporations are looking to their vendors to instruct them on how to get more out of what they already have, leveraging what they have to the fullest extent in the most efficient way, rather than jumping to a new model, or a new tool.

A lot of times in the tech world, we’re focused on the future. We’re thinking three or four or five steps ahead. Sometimes that works out, but I think a lot of corporations are focused on what can we do to address the problems that are right in front of them. It behooves us to have more conversations about the current corporate environment, their IT ecosystem and what they’re experiencing now, in relation to market trends. 

eDiscovery is One Part of Bigger Conversation about Information Governance

Matt Knouff: Corporate ediscovery folks are realizing that they want to have that flexibility of a toolkit, but they want to have best practices under one umbrella. They want to be able to manage their entire data footprint and not just for eDiscovery. On the corporate side, you rarely hear about eDiscovery solely in the context of eDiscovery.

Law firms are very focused. They’re working on discovery because they’re handling litigation, and they might be supporting an internal investigation, but corporations have a much bigger obligation. They’re looking at things in terms of privacy, data security, eDiscovery, and information governance. It’s all one bundled element. I think that’s what corporations are looking for is for their partners, to not necessarily have comprehensive solutions to handle everything, but they want their vendors to understand that full ecosystem and how those different pieces interact and then take the best folks and put them in the right seats on the bus, if you will. 

One Size Doesn’t Fit All When Solving eDiscovery Data Challenges

Matt Knouff: There is a lot of focus on the rise in ransomware, and the data privacy and security issues that were related to ransomware.

Corporations are also reacting to the rise in chat and text messages, and the collaborative platforms that have proliferated since COVID. A lot of corporations seem to just now be getting their heads around not only the scope of that data, but how to handle that data. And they’re looking to see what tools and technologies can be incorporated into their toolkit.

Similarly, there are heightened concerns about mobile phone and device forensics, especially in this remote world. Corporations want their outside counsel and providers to be more proficient with regards to their understanding and competency surrounding phone forensics.

Cory Logan: Seems that, historically, corporate ediscovery leaders and data managers were looking for software that did everything. Now that’s shifting a bit, where they’re looking for three or four different tools that do one thing very, very well. Going to the cloud and the realization that one size does not fit all are driving the conversation. Isn’t it better to be scalable and able to reduce costs and take advantage of three or four different tools as opposed to having to maintain a huge infrastructure and rely on only one of two tools that supposedly do everything?

Corporations are Leaning on Vendors for Cross-Functional, Business-Focused Solutions 

Matt Knouff: Corporations want to partner with and innovate with their vendors. They’re giving their vendors a seat at the table, looking to them as teammates to show them what is new, and give them in-depth information and cost-benefit analyses. 

Chris O’Connor: Corporations are more inclined to allow us in the legal operations business to get more things accomplished. This isn’t a one-on-one battle. This is a long-term litigation struggle. How do we provide repeatable steps to combat issues and take on litigation or investigations? What do we continuously improve and make sure that if an issue comes up again, we haven’t lost sight of what we did before? And how do we preserve that learning? I think that is going to lead to a lot of progress, both from the legal side, but more importantly on the business side.

Cory Logan: The conversation around service providers is an important one because law firms are not necessarily the experts in the technology. They are leaning on providers like us, who are the experts, right? We know the technology. We know how to deploy it. While actually some of us are lawyers like Matt and Bill, we should let the law firms be the experts in the practice of law. Let them do their thing and let the technology providers do what they do best. And ultimately, it’s a win-win for everybody.

Bill Belt: One of the things that surprises me is the continuing specialization and the need for specialized expertise. We’ve made this point earlier about trying to solve all problems with one tool, or all problems with one provider. Each area of expertise has a critical role. And each of those roles is becoming more and more involved, so that you need somebody that’s focused on that area, to be able to bring the best solution to the table.

Legal Operations are Taking Control of the Spend

Bill Belt: There’s a new level of excitement with people that have worked in eDiscovery for a long time. They are now getting to call the shots and make sure that their initiatives aren’t just disruptive, but that they’re implementing solutions and technologies that will help folks. 

Chris O’Connor: One exciting development is that for the first time, due to our remote reality, people on the legal operations side have taken control of the spend. They’re now able to get the dollars that are necessary to innovate internally.

It’s not just the partnerships they’re building with providers like CDS, but even providers for basic software, such as Microsoft and other platforms like Slack. 

Owning that part allows one far more control for the corporation to mitigate issues when they arise during litigation or investigations, but also be able to make sure that when they’re out there spending money or they’re out there utilizing technology, that they’re doing so in a way in which they own the understanding. And a buy-side knowledge increase is definitely a positive impact, I think, from all the terrible things that are going on because of COVID.

Corporations Went to the Cloud, and They Like the View

Cory Logan: Last year, people were talking about going to the cloud, or they were in the process of going to the cloud. That pool has grown – now they’ve done it. They went to the cloud and they love it. You look back 5, 10 years, when cloud was first starting to enter into everyone’s conversation, everyone was very hesitant, especially large corporations. 

Even though COVID probably drove some of that, I think a lot of these major corporations who made the move have realized that not only are they scalable in a way that they never were before, but they’ve been able to really drive revenue and reduce costs in a big way. And given what we’ve seen in the landscape in 2020, and how budgets have been decreased – not only in eDiscovery but overall from a technology standpoint, because of COVID – I think that that’s a huge win.

Another related question is – what do law firms actually think about their clients going to the cloud and going to the left side of the EDRM? I think the cloud piece and the information governance piece, is about driving innovation, about cultural evolution within the corporation. You just talk to law firms in general and they understand the shift. They’re having to also make the shift in how they’re servicing their corporate clients.

Information Governance – Education is Key, Process is King 

Cory Logan: Corporate information governance strategy factors into that as well. If you understand your data, have clean data, it’s up to date, and you know where everything lives, it makes going to the cloud that much easier. And those things coincide. I hear buzz phrases like ‘data hygiene,’ but you can’t have clean data and you can’t have data that’s up to date if you’re not educating your team members. And not only just your team, your direct reports, but the entire company. That’s a monumental shift in these large-scale organizations.

We talked about living and breathing documentation. Information governance the same way. You’ve got to find the low hanging fruit. What can you take and remove right away from the process in the beginning? It’s about having a streamlined process in place where you have clean data that’s up-to-date and everyone knows what to do going forward. 

Data Privacy is Running Hand-in-Hand with eDiscovery

Chris O’Connor: More people are also proactively discussing data privacy issues. In regard to GDPR, CCPA etc., people have become more forward-leaning when it comes to tackling data privacy in the US. They’re talking about them with a solution in hand saying, “I have a chief privacy officer, I have a senior privacy officer, I have a program that’s going to address these things as they come out.”

Eleven states already have serious privacy laws, and those are only going to increase over time. But the approach has migrated from “Let’s wait and see what happens. I want to make sure. Let’s find a budget to find somebody to deal with this problem, when it confronts us, not when it just exists,” to “I’m going to be proactive in taking on these things. And I want to get in front of this so that it doesn’t matter when it shows up. Whether it’s an investigation, a lawsuit, or just general business practices, I want to have a privacy expert on deck now. That person needs to work with us, be part of our team and get to that.”  And in the shorter term, “How do I integrate technology with that privacy person? I need a consultant to partner with to find out how we can leverage technology to make that person’s job a little bit easier, or more succinct.” It’s less wandering in the woods and more driving down the road.