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Trends in eDiscovery Highlighted for 2011

ProofPoint : 12 January, 2011  (Technical Article)
Cloud based e-mail security and archiving specialist details the top ten trends for 2011 in eDiscovery
According to security and archiving experts at Proofpoint, the trend towards in-house management of eDiscovery processes will continue to grow rapidly in 2011. The leading provider of SaaS email security, email archiving and data loss prevention solutions says this trend will be driven by organisations looking to lower legal expenses while gaining more control over the eDiscovery workflow. Proofpoint also expects cost to be a driving factor in accelerating the adoption of archiving in the cloud over traditional on-premise technologies.


Based on its close work with customers and legal professionals in email archiving and eDiscovery, Proofpoint predicts that the top ten eDiscovery trends in 2011 will be:


1.       eDiscovery ‘In-Sourcing’ Focus Shifts to Legal Risk Management: Companies have rushed to bring eDiscovery in-house largely to fulfill the objective of legal cost reduction. However, this investment has placed additional legal risk on the organisation, including their ability to protect chains of custody and build legally defensible eDiscovery processes. Consequently, companies will increasingly view the eDiscovery ‘in-sourcing’ decision as one of a trade-off of reduced eDiscovery cost against the potential increase in legal risk exposure.

2.       Adoption of eDiscovery in the Cloud Will Accelerate: Organisations will increasingly evaluate cloud approaches to eDiscovery in order to reduce cost and technological complexity associated with aging in-house systems. Driving this adoption will be an increasing number of organisations that are considering cloud alternatives to further hardware and infrastructure upgrades.


3.    Organisations Will Demand More from Cloud Providers’ Service Level Agreements: Lessons learned from early cloud adopters will result in increased customer requirements of their cloud-based archive and discovery providers. Increasingly, IT departments will expect explicit Service Level Agreements (SLA) reflecting frequency of data access, performance guarantees, and security infrastructure. Corporate legal departments will increasingly seek SLA assurances in data ownership, chain of custody protection, and the ability to adhere to applicable privacy laws in states or nations where information is located.


4.    Security, Privacy, and Discovery Will Need to Align within Governance Strategies: The still-fragile state of economic recovery has produced a number of new regulatory oversight models, including the Dodd-Frank Wall Street Reform and Consumer Protection Act. Dodd–Frank will significantly change the obligations faced by organisations in providing regulatory access as a preventative measure – something most organisations are ill-equipped to accomplish today. As organisations further explore how they can comply with these requirements, information governance programs will evolve to encompass security, privacy, and eDiscovery in order to provide a holistic assessment of current readiness levels. 


5.    Multinational eDisclosure/eDiscovery Rules and Frameworks to Mature: Driven by efforts at both the EU and country level, frameworks will mature that improve the efficiency of multinational eDiscovery/eDisclosure procedures. These frameworks stem from both the EU Article 29 Data Protection Working Party as well as the Sedona Conference Working Group. Increasingly prominent topics will include the protection of data privacy as information moves within and outside of EU member countries, protocols for satisfying U.S.-based and other cross-border eDiscovery requests, in addition to interest in tools that can provide local country and regional flexibility in setting policies for retention, preservation, and collection of EU-located data.


6.    Need For Closer Integration Between Data Sources and eDiscovery Tools Will Drive an Interest in Archiving: Organisations will become more wary of end-to-end discovery claims, and will seek pre-integrated platforms and direct access to data repositories. IT organisations will grow more familiar with data fidelity requirements for eDiscovery as they experience the potential risks entailed through the integration of multiple point products to address eDiscovery workflows. EDRM XML adoption will continue, but will likely be surpassed in interest of technologies that establish tighter connection with systems of record for email and other data.

7.    Growth in Social Media Content Will Place Increased Emphasis on Archiving Capabilities: Fuelled by regulatory changes governing management of social media within financial services, interest in tools to capture and manage preservation of social media will intensify, as will the need to ensure that current systems will be able to perform to the increased burden of management of additional data types.


8.    File Archiving Will Increase: Interest in managing the exploding growth of file shares and SharePoint will intensify as more organisations live through the pain and expense of locating and collecting files and local archives for eDiscovery. Specific priorities will centre on tools to quickly crawl and identify relevant content on demand.


9.    Fast, Sustainable Access to Information Will Emerge as a Common Purchase Driver for Archiving and eDiscovery: Mounting frustration created by slow response times in access to information within corporate repositories will lead legal, business, and IT users to view fast data retrieval as a top criteria in selecting archiving technology. Organisations will demand more assurance that new email and content management investments can meet or exceed performance requirements – both at time of investment and as those repositories grow.


10.  “Start Small with Big Buckets” Will Become a Best Practice for Retention Policy Management: After experiencing gridlock between IT, legal, and records management stakeholders, organisations will increasingly embrace a “start small with big buckets, then iterate” approach to setting and enforcing retention policies for email. This approach will gain favour instead of the lengthy and expensive “boil the ocean” attempts to automate comprehensive records programs. It will also become more popular as courts increasingly scrutinise the lack of policy enforcement in current cases in addition to an overall inability to produce email for litigation.  
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