eDiscovery is here to stay!

Posted on February 18, 2011

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eDiscovery is not a typical technology cycle that goes up and down as a 7 year polynomial distribution. I believe that eDiscovery is here to stay. Personally, I am a strong believer in the fact that Enterprise Information Management is really the best solution to drive down your eDiscovery costs and risks. But in the last year, I have seen that even if organizations earnestly attempt to implement information management best practices, they do not succeed in gaining complete control of their data. As a matter of fact, I believe organizations will continue to be behind the 8-ball for the following reasons:

  1. Data volume continues to double every 18 months.
  2. The nature of data changes from textual data to multimedia visual and audio data.
  3. The location of data moves from being within the firewall to being everywhere and nowhere (mobile and cloud).

These three forces conspire to keep data out of control.

In addition, people do not like to archive, clean up their inbox or implement retention. We prefer to keep everything. This may be good for knowledge management, but it creates a huge legal liability.

eDiscovery now involves far more than fulfilling the requirements of the US Federal Rules of Civil Procedure. Worldwide, there is an explosion of data investigations, document reviews and information disclosure as a result of:

  • United States (US) civil cases and US class actions
  • US Foreign Corruption Practice Act investigations: if a non-US company bribed an official in West Africa, the US government can sue said company in the US for this action. This happened recently to several European companies and resulted in huge fines for them. In the United Kingdom (UK), there is an even more aggressive version of this act in making, under which it will also be possible to sanction companies if they do not have a bribery prevention program in place.
  • US Export Control: the US does not allow exporting to countries such as Sudan, Cuba, Syria, and a few others. If a non-US company conducts business with these countries, its US subsidiary may be sued.
  • Any of the United Nations, European Union (EU) and US Sanction Programs that restrict delivery of certain goods to particular countries,
  • Extraterritorial influence of US antitrust laws: if a non-US company sets pricing with another non-US company and US consumers are hurt by this, then the US government can sue both companies, even if all illegal activities were conducted outside of the United States.
  • EU antitrust investigations conducted by DG Competition in Brussels to prevent various unfair forms of competition that result in higher consumer prices.  
  • Sarbanes-Oxley non-compliance for companies with a US listing can result in serious penalties.
  • EU regulatory investigations as a result of violations of financial, anti-trust, consumer or privacy regulations.
  • Various additional national regulatory investigations, often a result of the EU investigations or vice versa.
  • Internal investigations and audits to prevent all of the above.

As you can see, eDiscovery is here to stay. For that reason, every organization, whether it is government or commercial, must be able to confront the identification, collection, preservation, processing, analysis, review and disclosure of information, either to a regulator or to another civil party under the federal rules of civil procedure. Of course, we must continue to implement the principles of enterprise information archiving and management for our most legally risky files, but there will always be data out of control that requires defensible eDiscovery procedures.

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