One of the up and coming standouts in the eDiscovery industry is undoubtedly Darin Sands of Lane Powell. As co-chair of the firm’s electronic discovery practice group and chair of its privacy and data security practice, Darin plays a significant role in driving best practices for clients surrounding critical discovery and data protection issues. In addition, Darin is a frequent contributor on the eDiscovery speaking circuit where he spotlights, among other things, the value of predictive coding in the discovery process. I recently spoke with Darin regarding a variety of eDiscovery and data protection issues confronting companies.
Tell us about your background and how you developed your expertise in eDiscovery?
Shortly after joining Lane Powell in 2010, I was asked to work with some very smart colleagues to evaluate ways we could better serve our clients in the eDiscovery process. What I expected was a fairly straightforward exercise of vetting vendors to drive down costs. What I actually discovered was that the technology had taken a huge leap forward and there was a core of early adopters (at firms and in-house) using that technology in creative ways that not just saved time and money, but that also fundamentally changed the way litigation risk could be evaluated and litigation practiced. Unlike some eDiscovery specialists, I am first and foremost a litigator. Once I realized the benefit that could bring to my clients, I was hooked.
Why do companies experience so many eDiscovery and data protection problems with mobile devices?
The proliferation in the size and types of data maintained by companies is a challenging risk management issue even under ideal conditions. The dispersion of that data to mobile devices adds whole new layers of complexity to that analysis. This is certainly the case with the preservation and production of documents in litigation, but also in the thorny areas of maintaining data security and protecting and respecting employee privacy. And, of course, all of those risks need to be weighed against the convenience and productivity needs of the employees using the devices. On top of that, technology (both in terms of the mobile devices themselves and the security threats that target them) often evolves at a speed that can render even new company governance policies obsolete.
Why does cloud computing present so many eDiscovery and data protection challenges?
The challenges of mobile devices and cloud computing are similar in a lot of ways. Anytime you move data into the hands of third parties, whether it is a cloud vendor or an employee, you have to think hard about the unique risks that move entails. Nevertheless, the move to the cloud is likely inevitable. Many of the more sophisticated cloud providers have the scale, resources, and experience to provide data security and information governance/eDiscovery support that are difficult to replicate internally for many clients. That is why I typically don’t discourage clients from moving to the cloud in most situations. Instead, I encourage them to be proactive. Look hard at contractual provisions related to data security, litigation holds, and risk shifting provisions. Consider continuity issues in the event of emergencies. Done correctly, a move to the cloud can actually mitigate a lot of risk over time.
What will it take for predictive coding to become an established eDiscovery best practice?
Clients will demand it. In a recent interview, Peter Thiel defined technology as “doing more with less.” Doing more with less is one of the primary challenges nearly every in-house legal department is facing. Law firms must find ways to help their clients meet that challenge. Predictive coding enables counsel to do more with less on multiple levels.
The most obvious is cost. The era of firms making lots of money from an army of associates conducting a linear review of every document is over. But many have simply replaced associates with lower priced contract reviewers doing linear review. That masks the symptoms, but does not cure the underlying disease. If firms don’t leverage technology to avoid unnecessary discovery costs, clients will instead turn to non-firm vendors to accomplish document review.
Predictive coding also creates more competition between firms for complex litigation—a trend that clients will support and which will spread the use of predictive coding beyond the eDiscovery bubble. Before predictive coding (and other sophisticated methods of technology assisted review), small to mid-sized firms were at a disadvantage when it came to competing with big firms on large litigation matters. It was difficult to scale up and scale down with reviewers as well as the back-end technology and litigation support required for large document review operations. Technology assisted review (and partnering with efficient LPO partners in some cases) eliminates that advantage. In fact, I would argue that it gives the advantage to high quality small to mid-sized firms who focus solely on solving the critical legal problems facing their clients and not on seeking to turn their non-legal operations into profit centers.
As we approach 2015, what are the biggest eDiscovery challenges that companies are now facing?
There are many, but I think the top challenge is anticipating how new forms of data will implicate the litigation process. Despite the growth in the size of data over the last ten years, eDiscovery still largely focuses on emails, word documents, and excel files. Text messages, voice mail, and instant messaging are creating waves at the margins, but even that data has yet to be swept into most cases. But location tracking, voice recognition, electronic health monitoring, and the development of post-email communication tools are already here. These technologies present challenges not just because they are new, but because they provide types of information that we are not used to dealing with regularly in the litigation context. The NSA realized the value of this information years ago. Eventually, the civil litigation system will as well.
Thank you, Darin. Our best wishes to you in your practice.
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