Europe has adopted the General Data Protection Regulation (GDPR), which was promulgated in April 2016 and has a two-year implementation timeframe. It regulates the manner in which data can be collected and moved across international borders. The regulation makes an e-discovery company or law firm responsible for any compliance failure. If there is a breach, the data handling entity can be held liable for up to 4 % of its gross revenues worldwide, whether the breach was intentional or not.
A number of other trends are occurring in international litigation that are having an effect on e-discovery. Litigation is beginning to be seen as a business strategy in Asia as evidenced by the aggressive litigation some Korean electronics companies are taking with regard to protecting their IP. Those companies are seeing the potential benefits of using litigation as a method to protect or monetize their IP, which results in greater requirements for e-discovery.
Other factors are also driving the demand for e-discovery. The United States was the first country to carry out antitrust investigations that reached beyond its borders, and there is a domino effect with other countries now doing the same thing. These government investigations are often followed by class action lawsuits, creating additional challenges for the multinational companies.
The international nature of that litigation also creates more issues with respect to moving data across borders. Therefore, it is all the more important for companies to be aware of local laws and customs regarding privacy.
One question about data resulting from the proliferation of data is whether it will become a more frequent target of e-discovery.
Potential issues abound including whether personally identifiable information (PII) is involved. Most information is stored in structured databases and it could be used in litigation to make a claim that an individual was doing something at a certain time. The information may or may not be encrypted; it could also involve health data from wearable devices, for example, that could be considered PII. Organizations may need to take a step back and think about who the custodian is, whether the data could be part of e-discovery and whether it is being appropriately protected.
Moving to the cloud
Every organization has information stored across a multitude of systems, computers, shared drives, repositories, and now a lot of this information is moving to the cloud. This is going to require a new approach and new technologies in order to address the challenges arising from the growing volume and format of information being generated.
Managing cloud based content may be new to an organization and as a result there might be uncertainty of the risks involved and the various approaches to mitigate them.
Most of cloud repositories lack information governance. This means that an appropriate architecture and supporting processes have to be put in place to ensure hat content is properly governed and managed. By joining a could enabled information governance platform with those cloud content repositories, an organization will be able to make those cloud based repositories complaint with e-discovery requirements.
SaaS-based delivery models for e-discovery are becoming more prevalent. The move to Office 365 is another part of this equation. With more data in the cloud, it makes sense to have cloud-based e-discovery solutions. The established benefits of SaaS delivery such as scalability, faster release of new features and simpler interfaces apply to e-discovery as well.
SaaS delivery also offers simpler inclusive cost models and, in general, lower costs than on-premise and legacy hosted products.
With more data in the cloud, it makes sense to have cloud-based e-discovery solutions.
Information governance should be deployed within a traditional IT infrastructure, a cloud-based environment, a hybrid of traditional and cloud infrastructure. Information governance is rapidly moving toward an enterprise service model enabling organizations to deploy shared services across the complex IT infrastructure, eliminates dependence on users, and enables uniform governance across all applications and systems.
In order to remain competitive and maintain costs, organizations must consider information governance as a service. Technologies with a flexible central policy engine capable of managing the challenges of complex, federated governance environments are going to be the ones that enable organizations to make the most strategic use of information. These technologies have an enforcement model not tied to a specific store or repository but leverage standards to enable automatic enforcement across all systems, repositories, applications, and platforms.
