Walking the “Tightrope” Between Privacy, Information Governance, Discovery, and Litigation by Leveraging Technology and Expertise

There is a family of daredevil stunt performers who perform acts walking a tightrope without a safety net. They’re known as The Flying Wallendas, and, believe it or not, family members of The Flying Wallendas have been performing highwire stunts for nearly 100 years, since Karl Wallenda put together the first family act back in 1922.  When they debuted for Ringling Brothers and Barnum & Bailey Circus in 1928 at Madison Square Garden, they performed without a net for the first time because it had been lost in transit.  They received a standing ovation and working without a net became a standard part of their act.

While the Wallendas have made a career of walking the tightrope, organizations are finding themselves regularly in a position where they’re forced to walk a tightrope between the data minimization goals enforced by data privacy compliance and information governance best practices and the conservative approach that many attorneys take during eDiscovery when preserving data for litigation holds.  Can an organization address all these goals effectively?  We believe they can, by leveraging the right technology with the right expertise.

IGRM is a Corporate Operations Model

The Information Governance Reference Model (IGRM) published by EDRM has become an operations model within corporations for the management of information within an organization.  It’s the only phase within the EDRM model that is round because it’s perpetual – not driven by an end or beginning of a trigger event for discovery (such as the filing of a case or launching an internal investigation).  IGRM is a model that supports creating, receiving, protecting, using, retaining, transferring, and disposing of information in the support of stakeholders from IT, security, privacy, risk, legal, records & information management (RIM) and business units.  What could be more operational than that?

The term “records” that RIM professionals have traditionally referred to is becoming obsolete as governance is less and less about records these days – it’s about information.  Referring to those stakeholders as IM professionals is becoming more common.

Legal stakeholders have an increasingly pivotal role in the balancing act between privacy, information governance, discovery, and litigation.  Their responsibilities span all four functional areas, and the legal stakeholders are critical to being able to achieve an organization’s objectives across them.

Leveraging Existing eDiscovery Technology for New Use Cases

To achieve the balancing act between the four functional areas, one of the keys that can be leveraged is  eDiscovery technology.  The primary function of the technology used to support discovery and litigation has always been the analysis, organization, management, and identification of information to meet legal needs.  Machine learning, natural language processing (NLP) and other artificial intelligence (AI) technologies can be applied not just in discovery, but in a variety of business use cases and across our daily lives as well.  The use of mathematical principles such as recall, precision and sampling to provide a level of defensibility of results have been around much longer than the eDiscovery use cases for which they have become so common in the legal world.

When you consider functions associated with the management of information, regardless of use case, here are examples of eDiscovery technology solutions that support them:

• Identification: Cellebrite and X1
• Analysis: Nuix, Rampiva, NexLP, Brainspace and H5
• Organization and Management: Relativity/Relativity One and DISCO

Why use an Excel spreadsheet to organize information when you can use a platform that is designed to organize millions of documents, like Relativity?  Why rely solely on practice and procedures to identify sensitive personally identifiable information (PII) within an organization when machine learning and NLP can be trained to find PII data that manual efforts may miss? Why employ workflows that may be cost-prohibitive to execute across an enterprise when technologies exist to streamline the process?

Why preserve data broadly at the custodian level to support litigation when eDiscovery technology available today enables an organization to apply a much more granular level to litigation holds than ever before, avoiding unnecessary holds on large volumes of data?  The technology to walk the tightrope of those seemingly disparate organizational use cases exists within the realm of eDiscovery solutions available today.

eDiscovery Professionals are the Flying Wallendas of an Organization

Of course, technology by itself is useless without the expertise to fully leverage and expand its capabilities.  There is no Staples “Easy” button for the use of solutions for the complicated business workflows that are required to support an organization’s privacy, information governance, discovery, and litigation use cases.  These workflows are continually evolving, and they can vary widely across use cases and even within them, depending on the parameters.  Business and information workflows are like snowflakes – no two workflows are alike.

Knowledgeable eDiscovery professionals have the experience leveraging the technology solutions described above to support ever-changing workflows and they also understand the legal use cases for privacy, information governance, discovery, and litigation that are facing organizations today.  That understanding of both technology and legal best practices is key, which is why the Chief Innovation Officer for many organizations today is often a lawyer who is also tech-savvy.  Organizations need to leverage expertise in both areas (either internally or through outsourcing) to achieve the balancing act required to support all the legal use cases at issue at the enterprise level.

eDiscovery professionals are the “Flying Wallendas” of an organization, walking the tightrope to support its privacy, information governance, discovery, and litigation needs, with one exception – they work with the “safety net” of best practices for managing and securing information to support those needs.  Those Wallendas are crazy!

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