​On April 17, 2018, the C.D. Howe Institute in Toronto hosted a panel discussion on privacy appropriately titled:  Big Data, Bigger Problems: Who Owns Your Data?  A lively discussion ensued revolving around recent privacy incidents and the influence that social media and the public perception of companies has to play in the privacy space.
Trust, as an overarching principle guiding business, was a recurring theme.  In addition to using data lawfully, organizations are well-advised to consider developing ethical and transparent policies to establish a relationship of trust with consumers. While legal consent continues to be generally required for organizations to collect and use one’s data, there appeared to be a consensus among the speakers and the participants on the increased importance of potential public reaction when planning the information lifecycle of a company’s data assets.

This importance of trust was emphasized as well this week in the Globe and Mail on April 15, where Dominic Fortin, CIO at district m, addressed the issue with clarity…

“ the challenge of building ethical and transparent frameworks that will contribute to establishing trust between consumers, service providers and advertisers, and make advertising a healthy part of society. Only if that challenge is met will we be able to trust corporations offering a free service to consumers, such as a social network, to generate their revenue from ethical and lawful use of the data they have gathered for advertising purposes.”

In today’s rapidly changing environment where public perception may be as important as regulatory oversight, applying a long-term, risk-based approach to the collection, use, storage and eventual deletion of personal information just makes business sense. 

The Information Governance Initiative (IGI) released “The State of Information Governance Report, Volume III on March 1, 2018 (SIGR-III).  Based on a survey of approximately 100,000 people who work in Information Governance (IG) in their organization, it reveals some key insights about the importance of IG and also a (perhaps) surprising increase in adoption of IG projects.  It seems an appropriate time to reflect on IG and how it can maximize value and reduce risk.
There is a growing recognition, reflected in the SIGR-III, that IG is one of the broadest categories of internal business activities.  It is usually described as subsuming compliance, E-Discovery, and privacy, for example.  IGI has developed a pinwheel infographic which depicts IG as touching upon all organizational activities and functions.

IG is not a product that an organization can simply purchase or install; it is a practice, similar to the risk-based approach that has emerged in compliance disciplines.  It is an ongoing way of doing business that becomes easier over time but really has no end.  Its lifecycle moves through many stages: evaluation, collection, measurement, analysis, development, implementation, evaluation, reporting, training and finally audit.
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The goal of all this is to move away from an ad hoc system where individual users decide how information is to be generated, used, valued, shared, stored and deleted.  The ad hoc approach is fraught with risk.  By managing and optimizing an organization’s IG system we move to one that is designed to maximize value and minimize risk.  In other words, “IG by Design”.
SIGR-III demonstrates that business has got the message.  Some of the key findings include:
 
VAST INCREASE IN IG PROJECTS - the number of respondents who have never undertaken an IG project dropped by a whopping 90% in one year resulting in only 2% of respondents never having undertaken an IG project;
ORGANIZATIONS REALIZING VALUE - the number of organizations reporting that they are extracting business value from the information they hold has increased by 30% to 46%;
TONE FROM THE TOP – senior executives are getting more involved;
CYBERSECURITY CONNECTION – organizations are increasingly aware that IG is “essential to strong cybersecurity”.
 
SIGR-III describes a business world that is changing rapidly and starting to get a hold on the reality that effective information governance is no longer an option.  It is a business necessity.

Time again to dust off our crystal ball and give you our guaranteed[1] predictions of what you will see happening in e-discovery in 2017:

1. The Cloud
We have already started seeing a move away from on-premise e-discovery installations. With kCura’s recent move to hosting on Microsoft Azure, combined with Microsoft’s rollout of Canadian data centres earlier this year, we expect to see more law firms ditching their current in-house installations and moving to cloud based e-discovery software.

2. More Options for Canada
We predict a greater acceptance that cloud based software is just as secure, if not more secure, than in-house installations. We have been told by several south-of-the-border e-discovery software vendors that they have plans to launch Canadian data centre hosted installations in the coming year. We can’t divulge who they are (that would spoil the surprise), but look for more options next year.

3. More Discovery Plans  
The OBA Civil Litigation group has prepared a paper questioning the value of the current rules relating to discovery plans. We see an increasing need for effective discovery planning. E-discovery is not going away as data volumes increase. Different forms of communication are developed all the time.  As awareness of discovery plans and their usefulness for even small cases increases, more and more lawyers will start to use them, and start discussing scope and exchange of documents sooner, exactly the purpose of the discovery plan.

4. Better Search  
Although keywords will remain the dominant form for searching for relevant information, we expect to see better workflow surrounding keyword searches, and more use of other search technologies, such as conceptual categorization, assisted review, and machine learning. We are already past the adoption curve, and 2017 will be the year TAR becomes mainstream in Canada.

5. Better Organization  
Information Governance has become a catch phrase. Most boards now discuss how they can better govern their information. While the growth has mainly been due to an increased awareness in cybersecurity, e-discovery will benefit from better organization of the information and less ROT to sift through to find what we need.
 
After a couple of years of lackluster innovation and somewhat slow growth, we expect 2017 to be a watershed year for e-discovery in Canada.


[1] We guarantee that our predictions might or might not come true