Wortzmans’ tradition at this time of the year is to look back on the developments in e-discovery and information governance over the past twelve months, and to gaze into the future to 2016.
As we predicted last year, cybersecurity has moved from being an issue for the IT backrooms to an issue for the boardrooms. The number of breaches, and the financial and reputational consequences, is increasing. As a result, the focus of many organizations has been expanded to include information governance as part of their cyber-security strategy.
Last year we predicted that the failures in records classification would begin to be addressed by advances in software that would auto-classify records. We have seen some movement in this area with a number of promising software solutions entering the marketplace. We are keeping this one on the radar for 2016.
Our third prediction for 2015 was that TAR (technology assisted review) would become much more common in medium to large e-discovery matters. It has. These new tools, in the hands of skilled review teams, are generating big savings.
Other developments of note this past year included the update to the Sedona Canada Principles, Safe Harbor being replaced by swirling uncertainty, and an international focus on the protection of personal information.
What do we predict for 2016? Here are our annual predictions for the coming year:
We look forward to working with you in 2016.
Excel has often been the black sheep in disclosure. Many document exchange protocols recommend requiring spreadsheets in native format, even when the rest of the disclosure is in image format (.TIFF). The justification for this is often based upon the fact that, when printed, the formulae in a spreadsheet do not display, and spreadsheets rarely fit well on a printed page.
There is a much more sinister side to spreadsheet review: hidden content. With one right click on a column or row header, or a sheet tab, the “Hide” option can be selected, which immediately makes that content invisible on the screen. The only evidence of the disappearance is a missing column, row or sheet number, which is not that obvious in review. Granted, it just takes one right click to select “Unhide” but how often are your reviewers doing that?
Another nasty little secret in Excel is the ability to conceal the content of a single cell. This requires selecting the cell, using the “Format Cells” function, selecting “Custom”, and typing “ ;;; “ into the function box. The content of the cell disappears, but the cell remains. This is much harder to identify in review.
The good news is that this hidden content is not hidden from the indexing process, and a quick look at the extracted text will reveal what was hidden. That step is strongly recommended as part of spreadsheet review.
So, the next time you come across an Excel spreadsheet, think twice before skipping over the blank space. You may find something naughty or nice hidden there.
Dr. Ann Cavoukian, now Director of the Privacy and Big Data Institute at Ryerson University, is a long-time advocate for the protection of privacy and the protection of information in the digital age. In her December 9th op ed piece in the Globe and Mail, she highlights the benefits of uncompromised encryption in the protection of democracy.
Law enforcement agents now can trace digital communications for the purposes of prosecution and crime prevention. Modern communications, however, are often encrypted, and the only way to decipher them is to have a key. The key is held by the parties to the communication. In the face of atrocities like the Paris attack and the one in San Bernardino, there is mounting pressure on encryption providers to build alternate decryption “back doors” into their software so that that the encryption is not a barrier to investigation.
Ann Cavoukian says this is misguided. First, a back door would apply to all of the providers’ clients, opening up the possibility of unfettered state access to citizens’ communications. Second, hackers and cyber criminals will take great pride in picking the back door lock – further compromising our privacy and security. Ultimately Dr. Cavoukian makes the case that there is much more harm to be done by requiring back door decryption than good, and that a free and democratic society depends on the protection of privacy and personal information. Yes, she argues, let’s get the bad guys, but not at the expense of our digital privacy.