Well, another LegalWeek (fka LegalTech) has come and gone – with the usual mix of slushy weather, poor seating, countless demos, executive briefings, and flurry of product announcements (including ours, with Relativity). Of course, among those announcements and demos are the latest/greatest attempts to connect products to AI, blockchain, IoT, solar-powered, or biodegradable concepts – which left me with one simple question – what is the future of eDiscovery?

Reflecting on the conversations I had over the course of the week, below are the best examples of  new eDiscovery use cases:

• A global pharmaceutical firm looking for a solution to capture Facebook and LinkedIn posts in a manner that does not create issues with GDPR in Europe
• A major airline seeking to control the mushrooming use of Slack among its employees
• A leading telecommunications company currently rolling out Microsoft Teams, but concerned about their ability to conduct legal review of non-email content in Office 365
• A large broker-dealer concerned the ability to collect and preserve text messaging and mobile application content (including emojis!) for regulatory and litigation purposes. (Coincidentally, the WSJ published a front-page article on day 1 of Legalweek indicating that the use of emojis had appeared in 33 court opinions in 2016)

All of which leads to the conclusion that the future of eDiscovery has arrived. It has arrived in the form of multi-media, dynamic – and sometimes disappearing – conversations. It has arrived, driven not as a millennial conspiracy, but a dramatic shift in the communications and collaborative patterns of an increasing number of organizations.

Yes, it is happening now – and the revolution will be televised – on YouTube, Facebook Live, Spark, Instagram, and Skype for Business (and likely other networks that you aren’t aware of, but your employees are using today).

With these new breeding grounds of ESI, litigation will surely follow. In fact, the past 12 months have a significant number of new court rulings highlighting a firm’s obligation to capture and preserve social and mobile content sources, such as:

• Keim v. ADF Midatlantic, LLC – plaintiff failed to preserve text messages, but before the duty to preserve under Rule 37(e) arose, and thus sanctions were denied
• Walker v. Carter et. al, – Carter (aka Jay-Z) failed to produce discoverable text messages in breach of contract matter, leading to court sanctions
• Lawrence v. Rocktenn CP LLC – court ordered production of text messages, photographs and videos, concluding that they were relevant to the matter
• Ehrenberg v. State Farm Mut. Auto. Ins. Co – applying the standard of proportionality to limit social media production to that which is directly relevant
• Milo’s Kitchen Dog Treats – finding that a user’s designation of a Facebook page as “private” did not shield it from discovery if the information sought is relevant

So, how can you prepare for the future if your eDiscovery tools and processes were designed for the email, files, and documents of the past. Here are 5 steps to begin:

• Communication patterns have shifted – it’s time to get in front of the challenge: knowing your users and their data is more important than ever. Legal teams should be thinking about the accuracy of existing data maps, and whether they reflect the tools that specific job roles require today. Updating that mapping in advance is significantly less complicated than attempting to do so in the face of litigation.
• Become an active participant in the evaluation of new communications tools: legal teams should be actively engaged in the evaluation of new technologies that will impact existing eDiscovery protocols.  These assessments should be focused on creating a complete, cross-functional view of the benefits versus the risks new technologies bring
• Ensure that policies can be applied across all channels in use now and planned: understanding how one can block or restrict usage or specific features is critical in examining a new, rich communications tool that may offer voice, app and file sharing, and other collaborative features. At minimum, organizations should be dusting off current employee communications policies to make sure that acceptable and prohibited use of new tools are clearly defined
• Understand the methods to identify and collect emerging communication channels – every new communication tool is unique in terms of how it can be captured and preserved, as well as how easily it can be reviewed. Defining a game plan for how new technologies will be managed across all eDiscovery tasks with existing eDiscovery tools is a good place to begin
• Use automation to remove potential sources of failure: manual eDiscovery processes become exponentially more complex as the number of potential ESI sources grows. The use of automatic capture and classification technologies can help in reducing the complexities associated with the growing variety of ESI sources and data locations.

For more on information on how Actiance can help you prepare for the future – join our Live Demo of Alcatraz, the modern content store designed for how organizations are communicating today.

Originally published on Actiance.com, February 6, 2018.