3 Things Corporate Legal Needs to Know Part 3: Which Apps Are Touching Your Data?

October 22, 2021
In the first two Insights of our three-part series, Daniel Gold, Managing Director of BDO E-Discovery Managed Services, discussed who is making data within an organization and where that data is being made. In this final blog, we will cover why it’s important for corporate legal teams to know what apps are touching your data.

Every time data is created on behalf and for the benefit of an organization there is a certain amount of risk and liability that is being created. For every employee generating this ESI (Electronically Stored Information), there is a story to tell about the data journey the company is taking. There is a story to be told about what better business outcomes can be created, what policies can be generated and/or augmented to help contain costs and risk.

The transparency around that data can be seen with data-driven insights through tools such as Microsoft Power BI and Athenagy™ which is a way that BDO’s E-Discovery team surfaces up data in its patent-pending approach in Power BI to corporate legal departments about their e-discovery in both Microsoft Advanced E-Discovery and RelativityOne. Drawing out data driven insights enables companies everywhere to create data driven insights that create digital transformations.

Apps & Data

What does drafting an email, chatting in Teams, sending a text message, drafting a document in Word, making a PowerPoint slide, creating a formula in Excel, and doodling in Microsoft Whiteboard have in common? They all use apps to do something with your company data. Other SaaS-based (Software as a Service) platforms that are used for the benefit of the organization also touch data, and are therefore discoverable in litigations, compliance matters and investigations.

If moving to a remote workplace taught the corporate world anything, it is that employees actually don’t need to be in a physical office to get work done. I can speak with certainty that although technology providers have been espousing the ability to perform real remote hearings, depositions, and even some trials with remote video technology, most every lawyer said ‘no way.’ Yet here we are. In fact, it has worked so well, there may not be a benefit to always going back to a physical office or always ensuring lawyers are physically in front of a judge. In fact, I’d opine that it may ultimately help in fulfilling Rule 1.1 of the Federal Rules of Civil Procedure which state lawyers need to ensure a speedy trial. Yet, every Microsoft Teams video conference ever done during the pandemic and every chat and every document shared in each of these video calls are also discoverable.

Lawyers as Cybersecurity Experts?

Jeremy Bentham, the famed English philosopher, once said: “Lawyers are the only persons in whom ignorance of the law is not punished.” And yet, if we hold litigants to the maxim of ignorantia juris non excusat, shouldn’t we, as lawyers, apply it to ourselves as well when it comes to cybersecurity and eDiscovery technology?

To answer this question, I always like to start with Rule 1.1 of the ABA Model Rules of Professional Responsibility. It states:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

But then the question becomes how do you define competence as it relates to relevant technology? To answer this, Comment 8 is our guiding light. It states:

“To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject” (emphasis added).

So while lawyers should not be expected to become cybersecurity experts in this new world, they should be aware of changing technologies involved in our changing organizations – like advanced e-discovery.

If anything has been proven true in this this 3-part series is that data lives everywhere. Lawyers need to understand the relevant technology that they have likely already invested in (i.e., Microsoft Office technology) and deploy it appropriate to ensure that policies are intelligently created and/or augmented, that insights can be generated from the data to control risks and contain costs, and most importantly of everything – the company is doing more to make the lives of their customers better by enabling a true digital transformation.

If you’re looking to leave cybersecurity to specialist so you can focus on what you do best, check out BDO’s Athenagy—the only solution that combines RelativityOne and Microsoft 365 Advanced E-Discovery technologies.