By Philip Favro, From

Legaltech News

Philip Favro of Driven, Inc. provides his yearly predictions on the BYOC conundrum, the future of predictive coding, and more.

This is the time of year when we routinely consult with our favorite astrologers to gain some insight into the future of e-discovery. While the following horoscope for 2016 may not be completely accurate, these predictions should be fairly close to the mark:

1) Information governance will (finally) take flight. Analysts and other cognoscenti have been predicting for years that information governance would sweep the globe, transforming internal protocols and reducing data stockpiles while strengthening information security initiatives. Such a trend has indeed been developing, though at a painstakingly slow pace. 2016 should change that as enterprises get beyond traditional IG myths and move with alacrity to adopt information governance programs.

2) While organizations will begin solving the BYOC conundrum . . . Companies have struggled to address the data security, information retention, and e-discovery challenges of personal clouds in their corporate environments. Expect that trend to gradually change in 2016 as enterprises begin to adopt actionable “bring your own cloud” (BYOC) policies that tackle these problems. Such policies will generally provide employee education on the proper use of personal clouds, specify audit and enforcement mechanisms to gauge policy observance, and include disciplinary measures for noncompliance.

3) . . . Personal clouds will continue to dominate litigation headlines. Despite the anticipated progress on the BYOC front, many companies will still find themselves in the litigation spotlight in 2016 for not having previously addressed personal cloud problems. Indeed, look for more BYOC disasters like those on display in PrimePay v. Barnes and Selectica v. Novatus, which spotlighted both the need to secure the confidentiality of proprietary information and to preserve relevant cloud ESI prior to litigation.

4) Apps for mobile devices will present new security challenges. A related challenge from the consumerization of IT trend that has troubled enterprises in the digital age is the increasing cybersecurity risks posed by apps. Like the Internet of Things, mobile apps have often not been designed with security in mind. This poses cybersecurity risks that, while not on the scale of the notorious Sony Hack, could lead to problematic intrusions from hackers and viruses into corporate networks.

5) Courts will raise their expectations for E-Discovery competence among lawyers. If increased e-discovery competence wasn’t already on lawyers’ radar, it will be in 2016. The HM Electronics v. R.F. Technologies case from last summer assured that would be the case. HM Electronics, which cited to the recent California State Bar e-discovery ethics opinion while imposing sanctions on an Am Law 200 law firm for various e-discovery failings, should serve as a wake-up call to lawyers who hope the issue of e-discovery competence will simply go away.

6) The debate over predictive coding versus search terms will continue unabated. Think of the great rivalries over the course of American history: John Adams versus Thomas Jefferson, the competing wings of the Roosevelt family, and the Hatfields and the McCoys. We can now add an e-discovery chapter to this epic, i.e., search terms versus predictive coding. While various studies and court cases suggest the primacy of technology-assisted review, many lawyers cling to the familiarity of search terms. This debate has been ongoing now for several years and with 2016 upon us, it shows no signs of being definitively resolved.

7) In-house lawyers will increasingly turn to advanced analytics. Recent industry surveys point to an increasing use of advanced analytics by in-house lawyers. Expect that trend to continue in 2016 as in-house counsel expands its use of analytics beyond e-discovery and into areas such as legal matter management, billing, and budgeting; information governance; and selection of outside counsel.

8) Expect the new safe harbor framework to be scrutinized. While the EU and the U.S. anticipate that a new safe harbor framework will be finalized next month, don’t expect that framework to receive carte blanche treatment. Europe is in no mood to accept what it perceives to be middling protections from the U.S. for personally identifiable information (PII). Though perhaps not as flimsy as its predecessor, expect more Schrems-like challenges to be mounted to the new safe harbor framework.

9) The new EU data protection regime will be a game-changer. This isn’t so much a prediction for 2016 – the new data protection rules apparently won’t be effective until 2018 – as it is a warning shot for the future, particularly for U.S. companies transacting business in Europe and that are accustomed to lax domestic data protection laws. The rules’ sweeping changes include, among other things, the so-called “right to be forgotten” and substantial fines for rules violations. The two-year implementation delay should provide forward-thinking enterprises with the time to adequately prepare for the new data protection regime.

10) Acquisitions and divestments will continue to roil the e-discovery industry. The e-discovery industry saw acquisitions and divestments that made 2015 anything but business as usual. This trend is perhaps best exemplified by Consilio’s recent acquisition of the Huron Legal practice group. Expect more of the same in 2016, with the potential for further divestments or for a prominent provider to be acquired by a larger company from either inside or outside of the industry.

IMAGE: ©iStock/Greyfebruary

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