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LITIGATION SERVICES: An Introduction to Global-wide

Dana Miller
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Litigation Services: Evolution Accelerated 

As COVID-19 restrictions lighten, many are calling for the return to normal. Yet, it’s not a return to pre-pandemic conditions. Rather, 2022 has signalled the beginning of a new normal. Necessity was truly the mother of invention and the litigation services industry, and specifically alternative legal service providers (ALSPs), are evaluating how changes accelerated by the pandemic inform the way forward. It is unclear when the pandemic may truly “end”, but it has indelibly changed how we work. It was the tinder for widespread acceptance of distributed work environments, new technologies, and cloud-based solutions. This evolution has created an environment that aligns perfectly with the goals of ALSPs: 1) improving productivity; 2) mitigating risk; and 3) driving cost efficiency.

The following examines expected themes in the litigation services landscape in 2022 and as we look out to the near future. First, we explore the challenges and complexities of increasing data volumes, particularly from collaboration and chat applications. We then assess the industry’s call for ediscovery expertise and the role of ALSPs in data reduction efforts. Finally, we highlight areas poised for increased litigation and regulatory activity given the rampant growth of security threats and technology across industries.

Data Volumes Increasing in Size and Complexity 

The increase in remote and hybrid work has led to widespread use of collaboration tools, cloud-based platforms, and bring-your-own-device (BYOD) policies. While these aid in the completion of daily work, they also create significant amounts of discoverable data. Data volumes are increasing at a staggering pace. An estimated 2.5 quintillion bytes of data are created daily and 79 zettabytes of data were generated in 2021 alone. A 2020 report from the IDC observed that “[t]he amount of data created over the next three years will be more than the data created over the past 30 years, and the world will create more than three times the data over the next five years than it did in the previous five.”

Not only is the sheer volume of data challenging, the sources of data present new complexities. Businesses have increased their use of collaboration and chat-based platforms, such as Slack and Microsoft Teams, and virtual meeting platforms like Zoom and GoToMeeting. On average, an organisation may use 110 different SaaS applications (Vailshery, Statista, “Average number of software as a service (SaaS) applications used by organisations worldwide from 2015 to 2021”). Additionally, BYOD policies increase the number of devices through which these platforms are accessed.

Practically, communication previously occurring via email or telephone calls is now happening in these collaborative applications. The byproduct is the creation of new sources of discoverable data. Unlike during the rise of email data, when it was initially set aside in favour of hard copy information, we should expect ESI protocols and production requests to routinely request collaboration and chat data. The courts also have affirmed its discoverability, recognising the crucial role these data sources play in corporate communications. Further, regulatory agencies are focusing enforcement efforts on the preservation and retention of chat and text communications on both personal and corporate devices.

In turn, legal service providers must be ready to support the integration of this data into ediscovery workflows. Technical vendors must overcome challenges for collecting, processing, and rendering the data. Managed review providers must analyse how this data fits into existing workflows and what accommodations are needed for successful review. One specific area of focus is how AI and machine learning can identify conceptual themes, similar and related language, conversation participant relationships, and sentiment. Increased reviewer vigilance also is required to understand context, colloquialisms, and monitor for personal information. The ability to quickly derive contextual aspects is crucial, particularly for HR matters such as pandemic-related employment litigation and regulatory investigations.

The Need for Ediscovery Expertise 

With data volumes growing in both size and complexity, leveraging technology and innovative processes continues to be critical to ediscovery success. A resounding call in the litigation sector has been the need for experts in ediscovery process and defensibility—a call that ALSPs have heard loud and clear. Gone are the days of rote processing and order taking. Providers are leveraging their subject matter expertise and command of technical tools to provide comprehensive support. ALSPs task themselves with being lifelong learners. This entails vetting and understanding new technologies, continuously evaluating workflows, and keeping pace with industry best practices. Yet, most important, is monitoring the development of legal precedent to ensure defensible work product.

Historically, legal precedent has lagged behind technical innovation. However, as technology infiltrates nearly all aspects of legal practice, the judiciary is commenting on these areas more frequently. Holdings were issued in the last year regarding what constitutes a reasonable inquiry into sources of ESI, the preservation and production of ephemeral data, applying proportionality factors under FRCP 26(b)(1), and the need for more comprehensive validation procedures in certain TAR workflows, among others. Staying abreast of current case law positions ALSPs to help mitigate ediscovery risks by engaging in well-documented and defensible processes.

Data Reduction Through Litigation Preparedness and ECA

Efforts to reduce data volumes also have become an industry focal point. As inflation increases and businesses struggle to regain their footing after the pandemic’s financial impacts, the need to control costs persists. Concentrated data reduction efforts are a prime way to reduce ediscovery spend. Data reduction is a battle that can be fought on two fronts—pre-litigation preparedness and the use of early case assessment and technology.

Corporations should proactively review their information governance policies and perform data mapping. ALSPs can support in-house legal and IT teams in performing these activities. The goal is to understand what data is being retained, the reason for its retention, how long it must be retained, and where it is kept. This exercise is often enlightening. It can uncover unknown data on corporate systems or identify data that can be purged defensibly. Retaining only necessary data coupled with an accurate data map creates benefits should litigation occur. It streamlines the issuance of legal holds, expedites collections, and reduces the volume of data for processing and review, resulting in time and cost efficiencies.

Once a matter is initiated and data is collected, reduction efforts shift to performing early case assessment (ECA). During ECA, ALSPs collaborate with counsel to refine search terms, assess collection contents, and understand the review goals. Then, through leveraging subject matter expertise and advanced analytics, ALSPs quickly triage collections and identify data eligible for culling. Reductions can be further achieved through the application of TAR when appropriate.

Legal and Regulatory Trends 

Turning to substantive trends in the legal and regulatory landscape, there are several areas poised for increased activity in 2022. First, COVID-19 related litigations are expected to persist. As businesses resume operations, contract litigations are likely to increase. Of particular note in these matters will be the courts’ consideration of force majeure clauses as we cross the two-year mark of the pandemic. Employers are also expected to face increased workplace-related litigation as a result of mask and vaccine mandates, requests for accommodations, and the status of long-haul COVID as a disability.

Data privacy also continues to be a heated area. The increasing number of collaborative and chat-based platforms, along with devices being used to gain access to these applications, create more entry points for potential data breaches. In 2021, a record 1,862 breaches took place, and it is anticipated that this number will increase in 2022 (Identity Theft Resource Center, 2021 Data Breach Report). Further, we are seeing the development of new domestic state and international privacy laws. This necessitates proactive compliance, but also foreshadows an increase in privacy-related enforcement actions. When offering services related to personal data, ALSPs must continue to be vigilant in implementing security controls to minimise the introduction of vulnerabilities.

A final expected trend is increased regulatory monitoring of cryptocurrencies and decentralised finance. While President Biden’s executive order on digital assets called for further study of cryptocurrencies before regulatory action is taken, federal entities are readying for enforcement efforts. SEC statements identified cryptocurrency as an area of interest, and the agency is exercising increased scrutiny over whether this asset class constitutes dealing in securities. The DOJ has created a cryptocurrency enforcement team and the FBI has formed a new cryptocurrency unit, both poised to handle cryptocurrency-related offences. The CFTC also is targeting cryptocurrency platforms for potential unlawful commodity transactions. With cryptocurrency’s reliance on anonymity and encrypted wallets, we can expect challenges in identifying and collecting ESI. However, once that data is unlocked and imaged, it will be interesting to explore how we can leverage AI and machine learning in cryptocurrency-related matters.

Readying for What’s Next 

As we enter the new normal, we need to embrace the creativity that was required and the lessons learned during the pandemic to continue to innovate in the litigation services industry. We have learned that our industry is adaptable and resilient in the face of challenges. Adversity continues to inspire innovation. New ways of working are here to stay. While there will inevitably be some growing pains with balancing between pre- and post-pandemic operations, the industry’s focus should always be on supporting clients to create low risk, highly efficient, and cost-effective work environments.

The evolving nature of workflows requires handling large volumes of data from complex data sources. Each new data type brings opportunities to rethink existing approaches and develop new processes. Collaboration data is a key example of this as more cases hinge on information coming from these sources.

Further, the combination of technology and subject matter expertise is critical for providing best of breed, bespoke services to meet client needs in emerging areas of law. A working knowledge of the legal landscape is necessary for providing and implementing defensible solutions. This particularly is important as litigation and regulatory enforcement activities ramp up in new areas, such as cryptocurrency investigations.

Ultimately, 2022 is shaping up to be a very busy year for litigation across sectors and industries. Business operations have resumed, dockets are full, and litigation service providers need to continue to evolve and adapt to meet the challenges ahead.

By: Dana Miller, QuisLex Associate Director of Legal Solutions