Doug Austin’s eDiscovery Today blog is a welcome addition to my inbox on a daily basis.  His recent post: New ACC Survey Report Shines a Light on Corporate Litigation Readiness for eDiscovery Collection: eDiscovery Trends, is an especially “must-read” piece.  After you read this, you need to go to Doug’s page and subscribe, it is one of the best resources on the web for both eDiscovery newbies and enthusiasts alike.  However, rather than just direct you there now, and because the post is so helpful and concise, with Doug’s permission, I had to repost the full text of it here (with some commentary in italics).  I have also added the ACC webinar on the report to the event calendar and provided a link to the ACC survey report. 

Take it away Mr. Austin:

The Association of Corporate Counsel (ACC) and Pagefreezer recently released a Collecting Online Data for eDiscovery & Litigation Readiness Report. The ACC survey report presents the results of a survey conducted in March 2021 of 211 in-house counsel with expertise in data retention and preservation, discovery, and litigation across 23 industries and 22 countries.  

The explosion of new data sources and types (many are not necessarily new, but rather their importance and utilization are growing rapidly), which was propelled by the pandemic and the massive shift towards a more remote workforce, was the driving force behind this report.  The goal of this joint effort was to identify the key challenges legal departments are facing in this developing digital environment, their current levels of readiness with regards to these data sources, and their priorities and plans for future proofing their information governance and retention processes. 

Here are a few highlights from the report:

The 32-page ACC survey report includes an assessment of IG maturity from the perspective of the legal department based on policies and practices related to data retention and preservation, discovery, and data record production. The ACC inquired specifically about data records resulting from seven diverse data sources, as follows:

• • • • • • • • Online Meetings (which include Zoom, Slack, Google Meet, Teams, Voice Recordings) and are present within 96.2% of responding organizations.
              • Cloud-based Documents (which include Office 365, G Suite, PDFs, etc.) and are present within 89.6% of responding organizations.
              • Internal Messaging (which include (Slack, Teams, etc.) and are present within 86.7% of responding organizations.
              • Website Content, which is present within 86.3% of responding organizations.
              • Cloud-Based Email Clients (which include Office 365, Gmail, etc.) and are present within 85.3% of responding organizations.
              • Social Media Content (which include Facebook, Twitter, Instagram, YouTube, etc.) and are present within 74.4% of responding organizations.
              • Text and Instant Messaging Apps (which include iMessage, WhatsApp, WeChat, Signal, etc.) and are present within 40.3% of responding organizations.

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• Results are presented throughout the report for each specific data source and segmented by company size.  In response to the question, “How mature is your organization’s information governance and retention strategies by the following data sources?”, cloud-based email clients was the source with the highest percentage of respondents that deployed tools to facilitate automated data retention at 19.8%.  That number grows to 35.1% when including the second highest level of information governance maturity (Enterprise-wide retention strategy documented, published and communicated).  Less than one-third of respondents considered themselves in the top two levels of maturity for all other data sources.  Needless to say, there’s a lot of work to do.
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Not surprisingly, social media content had the smallest number of respondents at the highest level of maturity for information governance and retention strategies.  However, when you combined the first and second highest IG/retention maturity levels, text/instant messaging apps came in last (only by 0.2% though).  On the other hand, there was a surprisingly high maturity response rate around online meeting data in the IG/retention category.  I assume this is the case largely because of the number of available enterprise-level tools like Slack, MS Team and Skype, and because many companies were forced to use online meeting/collaboration technology to stay productive during the pandemic (less so with social media).  I would be interested to see the breakdown among respondents of the actual online meeting platforms used, and the process by which such tools were onboarded and integrated into IG ecosystems and retention programs.  My interest here is further piqued due to the fact that the report shows that large companies are producing this data using “third-party” software and mid-size companies are simply collecting this data and turning it over.  I’m not sure if maturity at the IG and retention strategy level transfers to the production stage. 

Two of the more troubling findings from this report relate to text and instant messaging apps:

1. 48.1% of respondents said they had no means to preserve this data.
2. When asked, “If a legal matter arose tomorrow, how quickly and easily would you be able to find, collect, and preserve relevant records for each data source?”, a significant number of respondents either replied, “Completely impossible” or “It would be difficult.”  

Across the board, text/instant messaging apps seem to be the most problematic.  This is understandable at some level because such apps are often not under direct company control, especially when lax or unforced BYOD policies are in play, with most companies reacting to their discovery through arduous mobile device collection efforts.  However, this data source is not necessarily new, it’s a treasure trove of responsive data, and it’s manageable through various technological and administrative controls.  Companies need to get on the ball with controlling the use of such apps and/or controlling their journey through the discovery process.  

Many might be surprised to see that “[moving] the e-discovery process in-house to allow [for] greater agility and response, and save costs.” is relatively low among corporate priorities.  However, this is consistent with the trends I see in the marketplace.  Legal departments are more frequently forming uniquely built strategic alliances with technology and service providers that enhance in-house resources while outsourcing certain elements to better manage risk and costs, maintain more operational control, and promote increased scalability and flexibility.  Such partnerships can also help address one of the primary barriers respondents identified to improving data preservation and retention maturity: They simply “don’t have the time/workforce needed.”  

• The ACC survey report identifies five key findings, as follows:
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1. Overall, most organizations’ IG programs are in the early or intermediate stage of development and are clearly still evolving. Content management is decentralized across business units in most organizations and very few have automated data retention processes.
2. Requests for production are most often handled by turning the data over to third parties. However, built-in discovery capabilities are often used for cloud-based documents and email clients. Large organizations are more likely to use custom-built tools for production requests across data sources.
3. There is high reliance on the IT department to produce records. Very few departments are able to produce records themselves quickly and easily. Even IT’s involvement is not without challenges.
4. Most organizations plan on investing in IG improvements in the next year or have recently made an investment.
5. Record retention is a high priority but there is a lack of budget and resources. The lack of time, available workforce, and budgetary constraints are the biggest barriers to more mature data retention and preservation processes.

The 32-page ACC survey report is available for download here.  The ACC is also conducting a webinar on Wednesday, July 21 at 2:00pm ET (right after our July EDRM monthly case law webinar, so no worries!).  

Thank you, Doug! 

Your friends at ESI Survival Guide