Survey shows lack of awareness around data governance and predictive coding

Law firms and legal departments know information governance is something they should have a handle on but few are actually addressing the pressing need to manage their data better, according to a survey conducted last week at LegalTech in New York.

While 73 per cent of respondents believe an integrated information governance strategy is critical to reducing information risk, only 19 per cent have implemented a system to help them with the problem.

The survey also revealed that although there is widespread familiarity with predictive coding technology, there are a variety of reasons why it has not been widely adopted. In fact, while 97 per cent said they were familiar with predictive coding, 69 per cent have yet to adopt the technology.

Symantec conducted the survey on the exhibit floor during the first day of LegalTech. Conference attendees were asked how familiar they were with the terms “information governance” and “predictive coding.” If they answered anything less than “somewhat familiar” the survey was terminated.

More than 100 respondents were then asked eight questions about information governance and predictive coding technology. Those surveyed said they know information governance is critical and necessary but said it is not yet being adequately addressed. Of those asked, 84 per cent of respondents were familiar with the term information governance; 73 per cent believe that an integrated information governance strategy is critical to reducing information risks and the costs associated with these risks. However, only 19 per cent have implemented an information governance solution.

Information governance incorporates multiple functions. Survey participants were asked how much they associate each of the following activities with the concept of information governance?

• e-mail/records retention (82 per cent)
• data storage (82 per cent)
• data security and privacy (80 per cent)
• compliance (78 per cent)
• e-discovery (74 per cent)

Matthew Nelson, e-discovery counsel with Symantec, said he is seeing organizations become more interested in information governance through their e-discovery initiatives.

“The idea is by leveraging an archiving tool that automates an organization’s retention polices, that allows them to systematically decrease the size of the fishing pool when downstream, they’re involved in an investigation or a lawsuit and their opponent wants to go on a fishing expedition to find documents relevant to that case,” says Nelson. “The organization has gotten rid of a lot of data so they don’t have to review as much information in order to respond to those downstream lawsuits, which saves a tremendous amount of money and time for the organization.”

When it came to predictive coding, Nelson says it’s about sifting through the hype and understanding what the technology can deliver.

“There’s been a lot of hype about predictive coding but we’ve really seen lackluster adoption,” says Nelson who notes lawyers are generally risk averse and the lack of familiarity with predictive coding has deterred its adoption.

In litigation, Nelson explains that predictive coding technology can be used to rank and then “code” or “tag” electronic documents based on criteria such as ‘relevance’ and ‘privilege’ to help reduce time spent on page-by-page lawyer document review.

“The survey results were pretty telling because they gave us some good indicators of what the problems are in terms of lackluster adoption,” says Nelson. “I think it boils down to their concerns about accuracy, easy of use, and cost. I think accuracy and ease-of-use concerns breed a larger concern around defensibility. For attorneys it’s tough to defend a technology they don’t understand.”

In an era where it’s still a challenge to get lawyers to use technology like keyword searching, Nelson says it’s a big leap of faith to ask them to use predictive coding, which can add layers of complexity to the process from a technology perspective.

In the survey, the most commonly cited reasons for not adopting it, among those familiar with their company’s stance on predictive coding, were: concerns about accuracy (62 per cent); difficult to defend (57 per cent); cost (57 per cent); concerns about privilege/confidentiality (54 per cent), and difficult to understand (53 per cent).

Seven out of 10 respondents said predictive coding technology will go mainstream if it becomes easier to use, more transparent, and less expensive. Only eight per cent disagreed.

Dera Nevin, senior director of litigation support and e-discovery counsel at McCarthy Tétrault LLP, suggests even fewer Canadian lawyers have adopted predictive coding technologies because we are a less litigious society. Her recent Canadian Lawyer article “What is predictive coding and can it help me?” offers more insight.

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