Like all technology, eDiscovery and the law surrounding it experienced a rapid change in 2018. Top of the list was the coming into force of the General Data Protection Regulations on 25 May 2018 which unified data protection laws throughout Europe.
To a lesser extent, the United States also experienced an increase in personal privacy, with legislation such as the California Consumer Privacy Act of 2018 coming into force and the Personal Data Collection and Protection Ordinance was introduced to the Chicago City Council. This would require businesses to obtain consent from Chicago residents to use, disclose, or sell their personal information. The increase in Technology Assisted Review (TAR) also continued in 2018, with Special Master Maura Grossman providing practical guidance in using TAR in In re Broiler Chicken Antitrust Litigation 2018 WL 1146371 (N.D. Ill. 2018).
So, what can we look forward to in 2019 with regards to eDiscovery? We examine some of the possible changes below.
Disclosure pilot scheme launched
On 1 January 2019, the Disclosure Pilot Scheme, launched in the Business and Property Courts in Birmingham, Bristol, Cardiff, Leeds, Liverpool, London, Manchester, and Newcastle.
The pilot scheme introduces key changes, including:
- the practice direction will set out disclosure principles
- all parties and their legal representatives have a duty to cooperate to promote a process of cost-effective, consistent, and efficient disclosure
- parties are obliged to meet to discuss and fill in a joint Disclosure Review Document (DRD) after closure of statements and before the case management meeting
- estimated costs of disclosure will be required when filing the DRD
Continuous Active Learning
Although many lawyers worry that computer-assisted review of electronically-stored information (ESI) will result in critical data being missed, studies show that TAR is more efficient and effective than exhaustive manual review. Continuous active learning (CAL), whereby the computer continues to select the next-most-likely-to-be-relevant documents for review, coding, and training, until no further relevant documents are identified, is the most effective method of supervised machine learning. As law firms become more familiar with CAL, it will become the default method for supporting traditional linear reviews.
Risk of data breaches
Electronically stored information (ESI) platforms offer a goldmine of information to hackers. 2019 will see an increase in criminal exploitation as these platforms provide sensitive, potentially valuable data which is accessible from multiple devices and entry points. The risk of a data breach is at its highest during data transfers, something that is an integral part of the eDiscovery process. Law firms and vendors will work to continually increase their data security measures over the coming year to protect data from possible breach.
Despite the efforts of some politicians in various countries, globalisation is showing little sign of abating. As such, cross-border eDiscovery is growing more every year and with data volumes increasing, the process and the compliance issues surrounding it are becoming more difficult to manage.
The need for accurate and efficient translation of ESI files, whether in the form of video, audio, or written, will become more pressing in 2019 and the coming years, as lawyers require international files to be translated into the language required to succeed in their litigation matter. Not only will there be a greater requirement for machine or manual translation of documents, eDiscovery teams need to ensure that data privacy regulation compliance is met at all stages of the process, not only in regard to the laws in the country where the litigation is taking place, but in the nations where the data is being pulled from.
Smart contracts and blockchain
Solicitors in every jurisdiction now recognise that blockchain transactions, including smart contracts, are a source of ESI which may need to be identified and analysed as part of the eDiscovery process. The use of blockchain based ‘smart contracts’ is predicted to grow significantly in certain industries such as insurance and fintech.
Blockchain records are encrypted and replicated on multiple ‘nodes’ throughout the blockchain network, hence cannot be erased or modified. And it is this inherent permanence of blockchain information that makes it more legally defensible; an important prerequisite for eDiscovery. On the other hand, identities related to blockchain transactions can be hard to establish due to the widespread use of pseudonyms. Therefore, although the transactions may be perfectly preserved via blockchain, the challenge comes in identifying the parties to the transactions.
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