When it comes to responding to a risk event, clients should feel comfortable and secure in their processes. This secure feeling comes with a number of precursor requirements, checks and balances.
Clients need to make sure they've made the right strategic decisions. They should be aware of the appropriate industry standards and ensure these have also been applied. Questioning the requisite skills and knowledge is a must. Is the client aware of data anomalies? Are they confident in their actions?
What are the benefits of outsourcing the management of evidence, when it seems simple enough to manage yourself? What do our clients need to know? As experts, what are we obligated to tell them?
the challenges
Digital content is fast and free. We are in a world where the demand for quick and easy access to information is constant. From live streams, to socials, to emails, and file sharing; our fingers are always on the pulse. The challenge we face is that in this new climate, clients are taking on much more of a strong hold when it comes to releasing their data willingly. It makes sense, considering the rapid increase in the number of data breaches Australia has seen in the last 24 months. However, it does present a new problem when it comes to the proper identification and collection of valuable and potentially relevant information.
The next generation of lawyers already understand the benefits of working with specialists
Key factors to consider are emerging data types, the more cost-conscious client, the censorship of data, and incorrectly managed data collections. If these are not dealt with correctly, the client could potentially face massive expenses both in terms of the rules of law, as well as financially.
Managing evidence is simple enough, right? Just right click on an email and save it? Surely one doesn't need to outsource these kinds of actions, because really, what is a data expert going to tell me that I don’t already know?
Unfortunately, this is a rather common scenario. We need to change the narrative, identify what our clients need to know, tell them why they need to know it, and show them how to get there and execute. We need to educate them and take them on the journey with us.
the what: what are we doing?
When it comes to data, what is the skillset of your team and/or client? Do they understand the chain of custody? The chain of evidence? Do they have the requisite knowledge and experience to take on the task themselves?
If the answer to any of these questions is not a resounding yes, then the decision made should err on the side of caution to avoid potential data risk events. One example is in the shape of a digital forensic examiner. They use specialist forensic software and tools to identify and defensibly collect, preserve, and analyse digital evidence. It is their job to make sure that the data integrity is kept intact.
the why: why should we engage?
A perfect example of why we need to provide our clients with expert advice stems from the behaviours of the “cost-conscious client”. Cost-conscious clients take a hands-on approach and will often curate the degree of evidence they provide to the third party. This is a risky area that data experts need to be aware of as it can result in data censorship, as well as inherent bias.
There are several reasons this persona emerges. A client might not be able to justify the additional spend to engage a data expert. They might have an IT background so assume they can perform the task. Certain data may be seen as for the “company’s eyes only” and therefore will not be provided for legal review. Data may have been accidentally missed during the collection or information gathering phase. For me, as an expert, I personally find one of the most significant reasons to engage an expert is that if you don’t do this sort of exercise regularly or don’t understand the process, there is a much greater risk of getting it wrong. The ripple effect can be catastrophic. An inexperienced person may also leave digital footprints within the data itself. Vital metadata properties may be inadvertently changed when copying evidence between machines. An expert will make sure they’re minimally intrusive, data is kept in tact, and the essence of the evidence remains unaltered.
the when: when should we bring someone on?
Indeed, the area of forensic governance is important, but equally important is the management of evidence populations, data wrangling, and production. These are areas that can have time, credibility, and costs ramifications rippled throughout the entire project if not managed correctly. This can start with something as small as ensuring there is a document protocol in place so that the data can be prepared correctly and in the same way across various parties (OCR, correct document ID, correct document details). If engaging in litigation then ensuring scoping parameters are clearly set out, and that your data is being safeguarded in a secure location is also important.
Failure to gain guidance in relation to these aspects of evidence management may result in clients being over inclusive with their data pool and therefore an increase in the overall eDiscovery expense. This has a flow on effect from processing through to production, overall hosting, and legal fees, the potential for delay and scrutiny around processes.
Engaging and expert early can give you piece of mind and set the tone for the rest of the experience.
the how: the together journey
Advancements in technology have drastically improved, and the costs associated with accessing it, has significantly dropped. The next generation of lawyers already understand the benefits of working with specialists. They are willing to be guided and engage in a true partnership which is also one of trust. The importance of engaging an expert means that clients will be exposed to the process. They will understand the risks, understand the sequence of events, and understand why things need to happen in a particular way. This in turn means they will be able to confidently manage their data obligations, regardless of the size of the matter.
The key to this is to lay the right framework at the start.
Reach out to Siera Data for more information about how we can help you.
