A decade has passed since the first eDiscovery amendments were incorporated into the Federal Rules of Civil Procedure. The concept of eDiscovery is no longer a novelty or an additional consideration for legal departments but rather a necessity that must be proactively and diligently addressed. Subsequently, many enterprises now go to significant lengths to secure electronically stored information (ESI).
However, in some respects, companies still lag, particularly in the software they use for eDiscovery. One recent survey found that 38 percent of responding organizations have not adopted any sort of recent eDiscovery technology advances. Legal departments may be compliant with ESI guidelines but might not be taking the next steps to ensure their organizations are overwhelmingly protected. This is a misstep: The sheer volume of data that is being collected, particularly from the latest browser-based business and communication tools, requires more sophisticated software for content archiving and eDiscovery or litigation support. If you haven’t reevaluated your strategy (or are just beginning to), here are the three key areas to consider:
1. Content behind the firewall
Software as a service has exploded this decade; the digital skies are “cloudier” than ever. As a result, more business processes are moving to Web-based platforms, and more applications are moving to Web-based user interfaces. Although, from an efficiency viewpoint, this is outstanding, from the eDiscovery software angle, it’s creating problems. Data might be entered into a secure system, or pages might be viewed on a password-protected site, but because of firewalls, this content is viewable only from the corporate network. Companies must be able to capture best evidence and content in the way they were presented during the ordinary course of business. Dynamic eDiscovery software achieves this level of data capture; older solutions may not.
2.Video not captured
Not too long ago, Web video was mostly just YouTube and was relatively easy to capture. However, just like other digital innovations, video has surpassed the capabilities of older eDiscovery solutions. Consider instant video chats that customers could have with company reps, stop-motion website animation, GIFs, and Facebook Live. These technologies were far out there 10 years ago but are now commonplace—and surely something new will come along that will require capture by software. Screenshots simply don’t cut it, because they don’t take into account the context in which the video or animation occurred. If you are relying on a screenshot of an animated GIF, you’re missing many frames that contain additional information and native context for litigation. If your current eDiscovery solution suffers from this gap, definitely consider an upgrade.
3. Incomplete collections
You may think that your eDiscovery software is capturing Web content, but are you sure it’s capturing everything? Websites are full of technical elements—“forensic” data, if you will—that aren’t immediately obvious but must be captured along with everything the user’s eyes see on the screen. Meta-data, H1 tags, alt text, and CSS are just a few parts of a webpage that must also be recorded. As already alluded to, screenshots are not acceptable eDiscovery today, and plenty of HTML elements are “alterable” and therefore won’t stand up to rigorous scrutiny, because something could have been changed between then and now. File collections and backups face the same inadequacies—they don’t capture Web content at the time of use. This isn’t an issue for the best eDiscovery solutions, which give you an accurate record of the entire webpage.
While many Web-based enterprise are often essential for litigation, smart organizations understand that capturing this content in its native context for use in the eDiscovery process is not just prudent but also one of the most effective ways to protect the organization and avoid huge litigation costs. Mind these gaps and find a comprehensive solution to ensure success.