ACC: in-house legal teams struggle with ESI from new digital data sources

Many companies are slow to implement formal practices for the retention and preservation of online data. Surveyed by the Association of Corporate Counsel (ACC) and Pagefreezer 71.6% of corporate lawyers rated their organization as “immature” or “intermediate” on the topic. This happens despite increasing reliance on online platforms like Slack, Teams, Facebook, Zoom, and WhatsApp for both internal and external communications.

The report

The Collecting Online Data for eDiscovery & Litigation Readiness Report, presents the results of a survey conducted in March 2021 oo 211 in-house counsels across 23 industries and 22 countries. The study examines how legal teams are dealing with new data sources like team collaboration tools (like Slack and MS Teams) and video conferencing platforms (like Zoom) and identifies the key challenges. The results reveal important quantitative insights into the current maturity level of information governance (IG) programs and the extent to which legal departments are adequately prepared for the eDiscovery processes involved in potential litigation.

«Combining the impacts of the exigencies of Covid-19 and the already frantic pace of adoption of new technology, information governance is undergoing a revolution – said Catherine J. Moynihan, AVP of legal management services at ACC. – The information in this report is critical to the in-house community, especially to discovery professionals involved in litigation, data privacy, and information security, because it provides an actionable look at where they are now, and where they need to go, in IG maturity. A safe, compliant, competitive law department requires this level of nuanced benchmark. We are grateful to Pagefreezer for their partnership in designing and developing this report».

«With the explosive volume of ESI being created through team collaboration tools like Slack and MS Teams, websites, social media, and text messages, legal teams need to preserve and produce this ESI in the same manner as they currently handle email. Yet, the results of the survey shows the IG practices for these types of data are not nearly as mature as that of email and cloud-based documents. Many legal teams would not only struggle to respond to a sudden request for production of online data, but would struggle to even identify and access this ESI – said Peter Callaghan, Chief Revenue Officer of Pagefreezer –. Fortunately, solutions exist and we’ve helped organizations cut down ESI identification work from weeks to minutes».

Other key findings

Another key finding of the report is that most organization IG (Information Governance) programs are in the early stages of development. A figure that is grossly impacted by decentralized enterprise content management strategies. Only 3.3% boast complete data retention processes.

Furthermore, around one-third of participants respond to data requests by collecting the data and turning it over to a third party for any type of data source. However, large companies tend to use third-party software and custom-built tools to respond to data requests.

The report also showed that very few legal departments are able to produce records themselves quickly and easily without the involvement of IT The reliance on the IT department varies based on company size, with legal departments in large organizations relying less on the IT department on average regarding record collection and preservation.

Then, some respondents in large companies said that an investment had already been made and 35 percent were confident it would happen within the year. On the other hand, 50 percent of respondents in small and medium companies reported that there were no plans to invest in IG improvements or expressed uncertainty about whether investments to improve the company’s IG would follow.

Finally, although data retention is a high priority, half of respondents pointed at the lack of time and necessary workforce (52 percent) and budgetary constraints (51 percent) as the biggest obstacles faced.