Inside E-Discovery & Beyond: Reimagining Digital Risk—New BDO USA Survey

Kerry Mullen
Bliss Integrated Communication
(212)-840-1661
[email protected]

Chicago, IL — As data transforms every aspect of our lives, from the way we communicate with one another to the way we do business, the role and responsibilities of in-house legal professionals are transforming too. To keep pace with mounting digital risks, 46 percent of senior counsel plan to increase their investment in information governance in the next 12 months, according to the Inside E-Discovery & Beyond survey released today by BDO USA, one of the nation’s leading accounting and advisory firms.
 
In the 12-plus years since the Federal Rules of Civil Procedure (FRCP) were amended to explicitly and emphatically include Electronically Stored Information (ESI) on the list of discoverable materials, the digital universe has grown exponentially, making it impossible for the legal field to ignore. By 2025, research firm IDC estimates the global datasphere will grow to 163 zettabytes — a tenfold increase from 2016.
 
“Ultimately, today’s corporate counsel must take a holistic view of their organization’s digital risk profile — assessing risk based on data flows, cross-functional interdependencies and global operations — and play a proactive, rather than reactive, role in risk-based strategic planning,” says Stephanie Giammarco, Partner and BDO Technology & Business Transformation Services Practice Leader.”
 
In its fourth year, BDO’s Inside E-Discovery & Beyond survey examines the opinions and insights of more than 100 senior in-house counsel about how the evolving digital landscape is spurring changes in their approaches to e-discovery, information governance, compliance, and cybersecurity.
 
Managing E-Discovery: The Early Bird Gets the Worm
 
As Big Data only gets bigger, effective management of the ever-expanding data universe is easier said than done. Nearly half (47 percent) of senior counsel list Big Data among their top three e-discovery-related issues, a substantial increase from just 28 percent a year ago. Almost half (48 percent) of survey respondents are currently using technology-assisted review (TAR), an increase of eight percentage points from last year. In addition, 31 percent report using analytics across the Electronic Discovery Reference Model (EDRM), and 23 percent leverage mobile document review.
 
For the second year in a row, survey respondents ranked managing information and data before a need arises as the most important factor in managing e-discovery litigation (42 percent), followed by understanding potentially responsive data early in the case (30 percent) and reducing e-discovery costs (18 percent).
 
“Implementing a data retention and disposition strategy as part of the ordinary course of business prior to the preservation duty kicking in is a great way to control the amount of data subject to discovery. This simultaneously enhances the ability to quickly develop an early understanding of what information is available and to begin to contain the likely scope and ultimate cost of the entire e-discovery process,” says George Socha, EDRM Co-Founder and Managing Director in BDO’s Technology & Business Transformation Services.
 
Other major findings from the Inside E-Discovery survey include:

• The General Data Protection Regulation (GDPR) could take legal by surprise: Forty-eight percent of survey respondents claim GDPR is not applicable to their organization. Chances are high that many of these companies are wrong. Any U.S. or foreign company that deals with EU citizens’ personal data — and definitions are not entirely clear — will be subject to the GDPR’s stringent requirements — even if doesn’t operate in any of the 28 EU member states.

 
“It behooves every organization — whether they touch EU personal data or not — to regularly review how information is used and managed to maximize its value and minimize risk. GDPR is just the catalyst for a higher standard of data privacy and protection to which every company should aspire,” says Karen Schuler, BDO National Information Governance Practice Leader.

• Digital assets increasingly become corporate counsels’ purview: Among respondents whose organizations have a defined information governance program, 42 percent of those programs are led by Legal, surpassed only by the CIO (47 percent).

 

• Legal officers’ cyber responsibilities expand: 73 percent of respondents believe their boards are more involved in cybersecurity than they were 12 months ago. 34 percent of the counsel surveyed say their organizations will increase cyber investment by 10 percent or more in the next 12 months.

 
The Inside E-Discovery & Beyond survey by BDO is a national survey conducted by ALM, a global leader in specialized business news and information serving the legal, real estate, consulting, insurance, and investment advisory industries, and an independent and impartial research firm. ALM surveyed more than 100 senior in-house counsel at leading corporations throughout the United States to collect their insights for BDO’s fourth annual study. Respondents come from corporations with revenues ranging from $100 million to over $5 billion from a variety of industries throughout the United States.
 
About BDO USA
 
BDO is the brand name for BDO USA, LLP, a U.S. professional services firm providing assurance, tax, and advisory services to a wide range of publicly traded and privately held companies. For more than 100 years, BDO has provided quality service through the active involvement of experienced and committed professionals. The firm serves clients through more than 60 offices and over 550 independent alliance firm locations nationwide. As an independent Member Firm of BDO International Limited, BDO serves multi-national clients through a global network of 73,800 people working out of 1,500 offices across 162 countries.
 
BDO USA, LLP, a Delaware limited liability partnership, is the U.S. member of BDO International Limited, a UK company limited by guarantee, and forms part of the international BDO network of independent member firms. BDO is the brand name for the BDO network and for each of the BDO Member Firms. For more information please visit: www.bdo.com.