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Regaining Ownership of Corporate eDiscovery

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Colm Murphy-H

Expert Advice from Espion

Introduction
Colm Murphy-HTraditionally, financial institutions responding to litigation, compliance, auditing or similar events have delegated responsibility for eDiscovery tasks to third-parties such as law firms and their support providers.

However, as volumes of electronic documents in enterprises increase and eDiscovery costs escalate accordingly, there is a greater need for organisations to take more control of eDiscovery processes. This is particularly relevant to the data-intensive nature of the banking and financial services sector. Progressive organisations are starting to manage eDiscovery like any other business process – one that is repeatable, defensible and measurable, and are achieving greater cost control and risk mitigation around their eDiscovery and information management initiatives – as well as more successful outcomes from their litigation activities.

Regaining ownership of corporate eDiscovery requires careful consideration of your organisation’s specific situation and needs, an understanding of how various eDiscovery processes operate, and the roles that people and technology elements play around those processes. It also requires a careful balance between the elements that should be done in-house, versus those best suited to remaining as outsourced activities. For example when financial organisations are investigated by government agencies, it is essential to understand how key privileged information should be presented to regulators during investigations and enforcement activity.

The indicators are that the frequency, scale and intensity of investigations by government agencies are set to increase in the coming years. Given the potential of severe penalties and sanctions as well as reputational risks that could stem from a negative finding or even the media attention surrounding such investigations, companies can ill afford to wait until a trigger event has occurred.

Reactive eDiscovery
Several common themes occur when an organisation delays thought on eDiscovery to the very last moment – typically when a sudden and unexpected involvement in litigation or similar event occurs. Negative consequences include organisations jumping into rapid-reaction panic mode by reactively hiring outside experts leading to immediate cost escalation, unnecessary disruption of key business processes and related stakeholders, and invalidation of necessary information to be collected due to eDiscovery collection processes being poorly managed and executed. All of this can often lead to costly upfront settlements being made that could have been avoided with a proactive eDiscovery strategy.

To avoid such outcomes some key upfront questions to ask that can help establish the kind of eDiscovery approach that applies to your enterprises – be it an in-house, outsourced, or hybrid approach, include:

What’s your company’s litigation profile? It’s important to understand the profile of your organisation, particularly for highly regulated industries such as the financial sector. Is attention to related events the norm? Do litigation events occur frequently? Do these legal events occur in consistent cycles, or can peak litigation periods be anticipated in advance? What is the potential outcome of those events – are they often “bet the company” scenarios, or impactful on corporate reputation? When ‘yes’ is the answer to such questions a proactive eDiscovery approach with appropriate treatment of in-house processes is needed.

What’s the financial profile of existing eDiscovery initiatives? It’s important to compare historical costs of eDiscovery initiatives with existing provisions for financing them. Does your company have a formal eDiscovery budget? Is it defined as a specific capital expense (more ideal) or it is taken from general operating budgets as needed (less ideal?). Is there a way of assessing inbound and outbound cash-flows relating to eDiscovery over time? Such analysis is important for developing an ROI argument specific to your organisation’s needs.

How consistent or complex are your typical eDiscovery use-cases? This involves comparing individual eDiscovery cases that occur in your organisation. Many organisations in the financial sector find that every eDiscovery matter is unique and different – dictated by factors such as diversified business interests, broad regulatory requirements, differences in outside counsel and eDiscovery approaches used, the need for expert testimony and auditing, and so on.

How are your personnel assigned to eDiscovery efforts? The eDiscovery effort can involve input across different areas of expertise including legal, IT, records management, HR and the functional business units. In some organisations there will be hard-and-fast distinctions between these, and eDiscovery initiatives will operate informally across this structure. Other, more progressive organisations will craft a specific cross-functional team across these and other business units to handle eDiscovery projects.

Finding The Right Balance in your eDiscovery Process

Figure 1 below depicts the Electronic Discovery Reference Model (EDRM), a popular reference point indicating how eDiscovery processes should be handled.

electronic-discovery-ref-model

 

In order to bring relevant aspects of eDiscovery in house, different stages should be considered for suitability. First up, a large-scale information gathering exercise should be considered carefully as part of the “Information Management” step, ideally as part of a wider Information Governance (IG) initiative. At the “Identification” step potential information sources should be assessed for scope, depth or breadth in relation to a pending/prospective legal proceeding – availability of appropriate cross functional resources (IT and legal in particular) is crucial here in order to create an accurate map of all data sources.

At the “Preservation” step, it must be ensured that relevant electronic information can be protected against inappropriate alteration or destruction once legal stakeholders issue hold notices. To manage this it must be ensured that legal, IT and outside counsel are able to co-ordinate effectively to hold these notices. If this is not feasible then outsourcing should be strongly considered.

Regarding the technical harvesting of data at the “Collection” step, managing this activity in house is easiest when the file types in question are easily manageable by capable IT personnel, using proven tools that don’t change relevant metadata. However if litigation is contentious then third party support is advised.

Significant ROI can be achieved by bringing the “Processing” stage in-house, especially in the financial domain where large repeatable caseload over time with large data volumes are involved. Outsourcing can be a more favourable option when litigation is less predictable or infrequent.

When evaluating and scanning electronic information for content and context at the “Analysis” step (e.g. key patterns, topics, people and discussions), there is a strong case for bringing elements of this stage in-house when internal personnel are often familiar with issues around the subject matter and may be able to act on the data quickly. Outsourcing should be considered when there are large volumes of data requiring a more thorough brute-force approach. Effective support at the “Production” stage requires an understanding of the specific file format requirements requested by the requesting party – and to provision for these file formats in earlier EDRM steps.

Conclusion
The scale and impact of the global banking crisis, among other events, has resulted in greater regulations and tighter controls for financial institutions in the foreseeable future. In this landscape financial institutions that adopting best practices that balance in-house and third-party support across the entire eDiscovery process – are more likely to achieve a number of benefits such as:

  • Increased likelihood of a favourable outcome to the underlying litigation or similar event
  • Greater ability to add focus and manage scope of eDiscovery
  • Greater ability to control eDiscovery activity costs
  • Increased insight into how to manage the process and make it more repeatable over time
  • Reduced disruption to internal data custodians and those who manage and maintain the IT infrastructure

Colm Murphy bio
Colm Murphy, Espion’s Technical Director, has taken primary responsibility for the development and management of Espion’s Digital Forensics & eDiscovery division. He has worked in the ICT industry since 1996 and has specialised in eDiscovery since 2001. He is a graduate of Trinity College, Dublin.

Colm has performed over 200 computer based forensic investigations and has led some of the largest electronic discovery projects conducted to date in Europe. He has presented evidence in court on many occasions. He has written extensively on Information Security, Digital Forensics and eDiscovery. He has lead and managed a range of information security projects in the public and private sectors in the UK, Ireland, Australia, New Zealand, Malaysia, Hong Kong, Singapore, and the Philippines. He was appointed an expert evaluator by the European Commission for the Preparatory Action on Security Research in 2007, and the FP7 Security call in 2010. Currently, Colm is leading a large multi-jurisdictional eDiscovery initiative for a major European Bank.

 

 

 

 

 

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Two-thirds of finance professionals are now more efficient due to the Covid-19 crisis

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Two-thirds of finance professionals are now more efficient due to the Covid-19 crisis 1

The Covid-19 crisis is making a big impact on the efficiency of the UK’s finance departments, with 66% of financial professionals reporting that they are working more efficiently since the onset of the pandemic in March of this year. The results from a recent survey into the impact of the pandemic on the sector by fintech company Onguard revealed that this increased efficiency is primarily due to the obligation to work from home and rapid digitisation during this period.

Changing attitudes to digital transformation

71% of financial professionals agree that their department was able to rapidly adjust to home working within just a few days, with 21% reporting that their organisation has invested in specialist software in order to do so. This has resulted in just under three quarters of those surveyed believing that they are able to perform their work well from home, with only 35% still in need of specialist software to collaborative effectively.

Alongside the implementation of new technology, changing attitudes to digital transformation have played a role in the successful move to remote working. Research conducted earlier this year prior to the Covid-19 outbreak in the UK highlighted employees’ resistance to digital transformation as a major challenge, however now only 11% of organisations view employee attitudes as a barrier to change.

Working from home is the new norm

Looking ahead, 61% of financial professionals would like the flexibility to keep working from home permanently, thanks to the benefits provided by new technology.

Marieke Saeij, CEO of Onguard: “It is certainly admirable how English businesses have adapted during the Covid-19 pandemic. Pre-pandemic, digital transformation initiatives within many organisations was a multi-year plan, but the events of this year meant that businesses could not wait to implement further strategies. Almost exclusively, colleagues now update each other digitally. Because of this, its crucial that organisations have the right software in place to keep everything running effectively.

Due to the challenge of finance professionals communicating via digital tools, it is important that data is kept up-to-date and contains real-time insights so professionals can make the correct remote decisions in an efficient and collaborative way. With the help of the right software, the finance professional can be sure they always have the correct data to do their job and assist both the organisation and customer moving forward.”

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Two thirds of people believe their work travel patterns have changed permanently

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Two thirds of people believe their work travel patterns have changed permanently 2

Alphabet research shows accelerating demand for mobility and EVs after lockdown

  • Only 35% of people expect to return to normal travel habits
  • A quarter of consumers said their next vehicle would be electric
  • 55% of consumers think all delivery vans should be electric, and one in three would pay extra to guarantee it

Farnborough, UK – 29 September 2020: Alphabet (GB) today published a new report examining how the pandemic has accelerated changes to travel and transport, altering consumer and business travel habits in UK cities.

Changing travel patterns

With mass migration to working from home, in March, road traffic travel dropped to levels not seen since 1955[1] and journeys on the London Underground fell by 95%[2]. Today, only 6% of those travelling to work by train feel comfortable, dropping to just 4% for tube users.

Use of more active modes of transport like cycling and walking have more than doubled to 20% and 10% respectively. A quarter of 18-44-year olds expect to retain the new modes of travel they used during lockdown, and only one in three expects a return to normal travel patterns.

Private vehicle preference

As such, the company car may also see a surge in popularity. Alphabet’s research showed 37% of consumers would now consider using a company car following the pandemic, to enable them to travel safely, whereas prior to lockdown many employees favoured a cash benefit. These changes are likely to remain for some time due to ongoing safety concerns and fleet managers will need to have a flexible fleet offering to handle these changing preferences when building their future mobility plans.

Electric Drive

The improvements in city air quality during lockdown appear to have had an impact on public perception and sales of electric vehicles (EV). Adoption of EVs continued to accelerate during the pandemic, taking a record market share of new vehicle registrations in August. Nearly a quarter (24%) of consumers said an EV or plug-in hybrid vehicle (PHEV) would be their next choice and 40% would strongly consider one. This is a substantial increase from the 19% of people considering EVs at the end of 2019[3].

People also want to see businesses supporting the shift to EVs and are prepared to pay for it. Over half (55%) of respondents felt delivery vans should be electric, while one in three said they would be happy to pay extra for an electric delivery vehicle. Fleets that make the shift early have the opportunity to benefit significantly in terms of brand perception and preference.

Simon Swan, Director Future Mobility, Arcadis said: “Due to the impact of COVID-19, all sales of vehicles took a major hit; however, electric vehicles were affected less than other vehicle types. As the UK emerges from lockdown, electric vehicle registrations continue to rise in absolute numbers with August new car registrations figures showing a record market share for pure electric cars. Analysts were expecting EV sales to hit 10% of new car registrations in 2022, not 2020. Hitting 9.7% in August is a big deal for the UK market.”

Alan McCleave, UK General Manager, NewMotion said: “As adoption spreads and we embrace electric vehicles – especially in the commercial sector – we need a much more robust smart charging infrastructure. Fleet managers need to feel confident that powering their plug-in vehicles will be as simple and reliable as it is for traditional vehicles. Introducing interoperability, so a single payment solution works across all charging networks, is a large and necessary change. With a focus on electrification, and the infrastructure to support it, fleets will be a central part of the national recovery from COVID-19 and our path to a greener economy.”

Nick Brownrigg, Chief Executive Officer, Alphabet (GB) said: “The pandemic has had a huge impact on people and businesses, fundamentally changing how we move around and use our cities. While we can’t be sure of the long-term impact, it’s clear a lot of these changes are here to stay, and for fleet managers flexibility becomes ever more important. At Alphabet, we are working closely with all our customers to help them navigate the new world. People are adopting new habits and behaviours so it’s key that digitalisation and sustainability are central to any fleet strategy. Now is the time for all of us to invest and meet the changing needs of employees and customers, so we can ensure everyone feels safe and confident when travelling to work.”

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Death of the workplace friendship: study shows how remote working is eroding our meaningful connections with colleagues

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Death of the workplace friendship: study shows how remote working is eroding our meaningful connections with colleagues 3
  • Employee experience platform Perkbox’s research on 1,296 employees and 300 business leaders reveal 65% think the ‘new way of working’ will take its toll on workplace friendships
  • 45% of employees say that maintaining emotional wellbeing still remains one of the biggest remote working challenges; yet only 20% of bosses agree

  • Meanwhile 35% of business leaders confess they are struggling to cope with the pressures of keeping employees happy at the risk of their own personal wellbeing

Friendships at work have long been a debated topic pre-COVID: arguments either side profess these to be both conducive or a hindrance to productivity and creativity. Yet, according to new research into the national state of employee wellbeing conducted by employee experience platform Perkbox, 45% of 1,296 respondents say that maintaining emotional wellbeing still remains one of the biggest remote working challenges facing businesses, with 65% believing that workplace friendships – now even more critical in the ‘new working world’ – are suffering because of remote working.

Colleague camaraderie in the age of COVID

The benchmarking study saw that 54% of employees now believe that maintaining ‘social wellbeing’ (how connected we feel with our colleagues and the wider world) presents one of the biggest wellbeing challenges in light of remote working – an increase of 18% from Perkbox’s study of the same sample set the previous month.

Yet there is a clear disconnect between what employees feel and what their employers believe: only 12% of business leaders recognise their employees’ social wellbeing as a significant challenge in the age of remote working, and only 20% of bosses (compared with 45% of employees) believe that maintaining ‘emotional wellbeing’ (how we feel about stress, anxiety and our overall mental health) is a significant challenge that mustbe addressed.

Some employers, however, confess that they are struggling with the pressures of keeping their employees happy, safe and productive during this ‘new normal’, with 35% saying that this has been at the cost of looking after their own personal wellbeing.

Mona Akiki, VP of People, Perkbox, commented: “Many organisations pre-COVID either didn’t pay much attention to friendships at work or focused on it as a way to ensure that it didn’t create any conflicts within the organisation. Today, we’re realising that strong colleague interactions seem to matter to an employee’s social and emotional wellbeing.

Remote working appears to have created nervousness around our sense of connectivity and camaraderie with our colleagues. Forward thinking organisations are quickly realising that this should matter to them as well.

Although organisations didn’t necessarily cause the current climate, the increased sense of anxiety and burnout amongst their employees who are now living and working in silo at home will not only impact the individual’s health but also the wellbeing of the team and the business. Both employees and employers must work together to combat this challenge and achieve wellbeing before it becomes an even bigger issue.”

Sedentary and sad

The third instalment of Perkbox’s benchmarking study also showed, for the first time, how physical health due to less movement has risen to be one of the top three wellbeing challenges for employees (after social and emotional wellbeing). With the removal of the daily commute and longer hours spent at the computer in order to appear more productive and thus more indispensable, 37% of employees believe that their physical wellbeing has suffered – with lack of exercise fuelling the emotional crutch of unhealthy comforts such as takeaways, binge watching and excessive drinking. The government’s recent guidance to “work from home, if you can” could exacerbate the problem further.

Tackling the problem 

Before and during the earlier months of COVID-19, workspace wellbeing (how the safety of our work environment and / or ability to work well from home is affecting us) was the most implemented initiative by 79% of businesses, with initiatives around social wellbeing coming a close second (75%). Yet – perhaps because of the economic uncertainty brought about by COVID compounded by the lack of acknowledgement by bosses that emotional and social wellbeing is a problem felt by employees – 16% of small business say they have no plans to implement initiatives to tackle these challenges; a figure which has doubled from the previous Perkbox study.

Furthermore, 30% of smaller business have no plans to implement financial wellbeing support during this critical period (compared to 9% in the last study); 23% have no plans to implement physical wellbeing initiatives (an increase from 9% previously), and 13% have no plans to implement emotional wellbeing initiatives to support employees’ mental health (compared to 5% previously).

“There is a concerning trend – especially among smaller businesses – about disinvesting in overall employee wellbeing initiatives at a time where support is needed the most,” commented Mona Akiki, Perkbox.

“There seems to be a lack of understanding that these initiatives need not be expensive but considered, human-centric and empathetic to the emotional, social, physical and financial challenges that beset us every day, hindering us from our ability to perform optimally. A team whose wellbeing has been adequately attended to has the resilience, energy and creativity to weather business challenges more effectively than a team whose members are emotionally, physically and socially run ragged. Our research acts as a barometer for how pressing these concerns are to both employees and employers. These challenges, at least for the medium term, are here to stay. It’s time that businesses invest in employee wellbeing as part of a wider essential strategy to ‘keep the lights on’ where others are floundering.”

As part of Perkbox’s New Working World series, a number of surveys and reports are being produced to track employee sentiment towards wellbeing as we exit a post-Covid world. This is being run alongside a survey of UK employers to see the business perspective on wellbeing impact in light of 2020’s events. For more information and full report on the studies findings, visit: https://www.perkbox.com/uk/resources/library/new-working-world

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