Thought Leadership and Industry Trends
How eDiscovery Technology Can Be Deployed to Proactively Manage Legal Risks
By Michael Milicevic, Esq, Managing Director, CDS Chicago.
A common misconception is that the legal industry and the law are by definition reactive. Most individuals only reach out to and interact with attorneys after legal matters arise. Often this reactive approach to legal issues can be much more costly than proactively trying to identify and avoid or mitigate situations that may have legal repercussions down the road. Most corporations are keenly aware of the need to manage legal risks. However, they don’t realize that technology used in eDiscovery could be deployed to help spot and address situations that could result in legal liability for a company.
The good news is that solutions custom tailored to corporations to manage their eDiscovery needs can also provide a platform to help corporations become more proactive in potential matters involving the discovery of electronically stored information. Below are just a few examples of how this technology can be used.
Profanity/Provocative Term Filtering
Most corporations have rules of professional conduct, demeanor and language that apply to the workplace and on official company communications. That being said, there are occasions, especially during stressful times where employees may send communications with inappropriate language that they typically would not use. Research has also shown a high correlation between the appearance of profane or provocative language in emails outside of normal working hours and employee malfeasance. Some eDiscovery providers have compiled general provocative term filters that can be applied to employee communications when they are involved in or accused of misconduct or unprofessional behavior in the workplace. These filters can quickly flag communications for further review and escalation, so their context can be further examined allowing corporations to intercept situations that may result in potential employment related litigation and take appropriate corrective action internally.
It’s strongly recommended that when using these general provocative/profane term filters, results are reviewed either internally by the corporate HR/legal team, or perhaps by a small team of contract attorney reviewers who can take the full context of emails into consideration. For example, is a manager inserting profane language into email communications in a misguided attempt to inspire his team? Or perhaps two colleagues are having a spirited conversation about an office fantasy football pool that is getting a bit out of hand. Instances like these should still be addressed, corrected, and escalated as appropriate.
Network Communications Analysis
Most corporate employees have a network of contacts within their organization with whom they frequently communicate, such as individuals within their specific department and direct supervisors. These company communication networks can broaden with higher level employees or members of administrative departments that interact more frequently with individuals throughout the entire organization. Advanced eDiscovery analytics tools are available to help analyze and visualize employee communication patterns over time which can be deployed to flag anomalous communication patterns for further review. For example, perhaps a member of the accounting department sends emails frequently to colleagues within his department and the CFO but has an unusual spike in email communications with a team member from the loading dock around the time some company equipment went missing. This is something that can be flagged and connected utilizing the metadata of email communications and advanced analysis of eDiscovery analytical tools.
False hits or flags are certainly probable, which is why it’s highly recommended to work closely with providers to build protocols for monitoring company communication networks and reviewing deviations from communication patterns for relevancy. Network analysis can be particularly useful when monitoring communications of employees in extremely sensitive positions, like research and development, where communication with outside departments is severely restricted.
Domain parsing and analysis has become a pretty standard component in eDiscovery matters, primarily used for eliminating or excluding junk or spam domains from review. It’s also a great way for corporations to proactively monitor and mitigate potential legal matters by taking a closer look when custodians communicate with unexpected domains. For example, most corporations restrict use of corporate email accounts for personal business and conversely restrict official company business communications from being sent with personal accounts. A quick review of domains parsed out from custodian data sets can quickly identify domains generally utilized in personal email accounts like Gmail or Yahoo. A deeper analysis may identify emails sent to these personal accounts during odd hours with high attachment counts. Taken together, this type of behavior may reveal an employee transmitting proprietary company information to a personal account, perhaps in an attempt to port information to a competitor when they are planning to leave the company. Once again, the likelihood of false hits can be high. It may simply be an employee communicating with a friend about weekend plans. Still this type of behavior should be flagged and corrected to ensure the security of information being disseminated through official corporate email accounts.
These are just a few of the ways that existing eDiscovery technology and techniques can be deployed across data housed in Corporate Data warehouses with eDiscovery providers to take a proactive approach in legal risk management.
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