The beginning of each year is always rife with resolutions on the personal front and trends articles at work. By February, however, in much the same way that people have abandoned their resolutions and returned to the hum of their normal routines, most people are buried in work and so far from seeing the big picture that the ideas inspired by trend reporting have fallen by the wayside. So, it is a good time for a reminder of the areas where strategic investments can lighten the load, streamline workflows and help you work smarter to contain the ever-increasing costs of discovery, which is one of the most expensive parts of preparing a matter.

1. Lower Costs With Data Analytics

Data analytics are poised to assume a bigger role in eDiscovery for the simple reason that they are a primary way that clients can control costs. Data analytics offer a snapshot of the materials pertinent to a matter to give a better sense of where to focus attention and what to deprioritize, if not exclude entirely. In this way, data analytics tools are at the heart of the drive to work smarter to contain costs for clients. Moreover, data analytics dashboards enable the mapping of communications, the identification of related terms and concepts and the categorization of information to reduce the number of expert review hours needed. The bottom line is that data analytics will yield a significant return on investment for those who engage a skilled service provider.

2. Increase Efficiency With Next-generation Predictive Coding Tools

To continue the theme of cost containment, the next generation of predictive coding tools will be essential to realizing value in the document review process. These tools, like data analytics, are all about providing value earlier in the work stream. The goal of integrating predictive coding protocols sooner is to identify which documents to include in review instead of which to exclude. This is where clients will realize major cost savings because technology-assisted review (TAR) allows for human review’s strategic use. Skilled service providers will be able to reference multiple predictive coding workflows that facilitate this upstream reduction and be able to show a model of how the technology works.

3. Put Data Security Front and Center

In 2016, data security should be a primary consideration when preparing a matter for discovery, whether it is being handled in-house or by an external partner. In my opinion, a third party must be able to demonstrate with more than checked boxes that it has robust data security practices in place, that it is knowledgeable of the major data privacy issues by region and by industry, that it can pass ISO audits and that its data centers are certified. The fact that a number of law firms are now hiring chief information security officers is proof that the ability to engage in meaningful discussions about information security and demonstrate compliance with data security standards will be front and center not just this year, but for many years to come.

4. Develop a New Data Transfer Strategy

The final area that I want to touch on is not so much a trend as a fact of life that affects any organization handling cross-border matters, and particularly financial services institutions, their in-house counsel and law firms of record. It is, of course, the ongoing impact of the Schrems decision and the invalidation of the Safe Harbor Framework. Now, it is true that an agreement has been reached as to a new framework, referred to as the EU-US Privacy Shield, but we’re still in the early days of figuring out what it means and whether it will be accepted by the individual EU member states and their data protection authorities (DPAs). At best, we are four months out from any implementation of a new framework, which would mark 10 months of protocol limbo.

While we do not know exactly how the Privacy Shield will affect eDiscovery and what process revamping it will require, we do know that the days of a lawyer in New York reviewing data from Germany are over. We also know that changes in the EU affect how eDiscovery is handled in South America, Asia and Australia, since all have relied on the Safe Harbor Framework to manage data transfers.

In terms of strategic investments to mitigate the impact of uncertainty for the majority of organizations not able to pursue Facebook’s solution of building a data center in Ireland, there are plenty of opportunities to be found in partnerships. A sustainable approach is to form a partnership with a service provider that has a strong record of doing business within the EU and that has data centers, local staff and attorneys experienced in the nuanced perspectives of different DPAs. Long term, these relationships provide far more certainty than workarounds, such binding corporate rules or model clause contracts.

I have no doubt that 2016 will be one of great growth and opportunity for the eDiscovery community, as new technologies become part of the everyday workflow and we get more guidance on how to integrate them into matter preparation. The best advice I can give, besides to leverage technologies that manage cost, is to be inquisitive, to learn about the developments in the field and to start conversations with colleagues and service providers to ensure that you are ahead of the game and exceeding your clients’ expectations.

Jon Fowler is hosting a lunch in Washington, D.C. on Friday, March 18th, 2016 at 12 Noon.  Interested in joining him to discuss issues related to Safe Harbor and Privacy Shield?  You can register here:


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