Conversation with Thomas Bonk

Tom,

Good catching up with you recently, and thanks for taking the time to chat with me.

You believe that we're seeing what amounts to a paradigm shift in corporate communication habits e.g. slack, group chat, WhatsApp etc, and that the effect of these could be so drastic as to warrant changes to the Federal Rules.

How do you think this will play out?

I expect we’ll see an acceleration of contentious legal challenges and breakthrough rulings in cases where these modern forms of ESI are increasingly relevant. Technology and business processes that support eDiscovery will require an infusion of innovation to address these problems as they were originally designed primarily to handle paper documents, email and fairly straightforward electronic file types, such as MS Office, PDFs, etc.

We’ll see an increased dependence on one-off workarounds performed by the most expert technologists and consultants as the eDiscovery technology product providers scramble to catch up and embed these advanced capabilities into their standard platforms. This is very reminiscent to the dynamic that existed in the mid-2000’s when the volume and complexity of ESI eclipsed the capabilities of what was at the time considered standard legal technology. In my view, it’s déjà vu all over again.

When we spoke last, you gave me the example that how we define containers and custodians is getting increasingly complex — care to share with our audience?

Yes, the concept of a data custodian is rapidly becoming murky as modern communication platforms like Slack or Microsoft Teams are increasingly adopted for standard business use. The Electronic Discovery Reference Model (EDRM) defines a custodian as a “[p]erson having administrative control of a document or electronic file; for example, the data custodian of an email is the owner of the mailbox which contains the message.”

Slack and Teams are often deployed with persistent chat feeds that are accessible and inclusive, in many instances, to hundreds or even thousands of employees and other external stakeholders who chime into the conversation randomly only over long periods. Does this mean that everybody is an owner of this ESI and meet the criteria of legal custodian? Or are eDiscovery practitioners poised to parse out only sections of the feed relevant to the matter? And in doing so will the overall context of the meandering chat feed be compromised?

This is going to be a very difficult problem to address when reviewing for relevancy and privilege in legal discovery and disclosure proceedings.

You’ve identified the issue — I’m curious, on the issue of custodian do you have a sense of what ought to be the definition of custodian and, in the example of Slack, who should meet the threshold?

I’m not sure that the concept of custodian as we use it today survives in a massively-scaled, persistent chat world of Slack and other similar platforms. I think we are going to have to invent new vocabulary to describe ‘data ownership’.

Legal practitioners may no longer be able to make a broad first cut of “let’s just examine these 10 key custodians’ data” and instead always consider the entire universe of ESI created within a communication platform like Slack.

How does all of this affect solution providers like Epiq?

We have to constantly stay on top of these issues and anticipate where the legal case teams that we serve may encounter thorny challenges. As a large, global service provider we are exposed to a broad variety of issues, often at the cutting edge of technology and the law. We leverage this experience by continually refining our best practices that, in turn, benefit our entire client base. This requires a huge commitment in investments in employee training programs, R&D in both the technology tools that we use and the ESI content itself, and actively participating in industry standards groups and educational conferences.

Before I let you go, one final question. I'm not sure if you were at Relativity Fest last week (I was monitoring from afar), but one of the key themes I saw emerging was the shift of companies like Epiq from pure litigation support to "data management" which might even include workflows around contract review.

I know it's a little bit off topic, but from your perch at Epiq, are you seeing this trend as well?

Our antennas are always up for identifying and developing new service offerings all along the EDRM. And those new offerings typically emerge from client-driven requests, that is, we follow closely what our clients tell us they need and then we figure out the appropriate technology, resource plan, geographic location and business model on the service delivery side.

So yes, in the past year we have launched several new non-eDiscovery service offerings such as automated data classification, data breach response and remediation, GDPR compliance, data migration, contract lifecycle management, and a whole host of advisory and managed services supporting enterprises who are transitioning on premise corporate systems to Office 365.

Tom, that's great to hear and something I will keep a close eye on going forward as well!

Thanks again for joining me, it's been a lot of fun.