Corporate Data Challenges in EMEA in 2021: Emerging Legal and Discovery Issues - Part 4 of 4

This year, a number of high-profile cases have demonstrated that the U.K. courts are willing to certify classes and are more open to collective actions, especially in matters involving competition violations. In one, a representative opt-out action based on an alleged breach of data protection laws was not allowed in the U.K. This reflects concern about opening the floodgates for very big classes without being able to prove individual harm. Looking ahead we expect to see more mis-selling and share drop claims, ESG and climate change related claims (green-washing or environmental damage) and investment fraud claims.

This rise in class action claims fuelled by litigation funding is placing increasing and significant pressure on organisations in terms of document requests and claims management after a matter concludes. Technology plays a key role in helping organisations handle these new challenges, particularly in managing large scale e-discovery exercises and in automating the process of managing large classes of claimants and their data, processing claims and distributing funds responsibly and efficiently.

Beyond an increase in class actions, disputes in general are also on an upswing, with many new cases spurred by the fallout from the pandemic, especially post-acquisition disputes. This increase in legal matters combined with the growing size and complexity of data creates a need for new technologies, workflows and expertise to conduct digital forensic investigations and e-discovery. As a result, clients are becoming increasingly open to adopting advanced tools and methodologies such as technology assisted review (TAR), data enrichment, and FTI Technology’s Find Facts Fast investigative approach to document review.

In parallel with the growing demand for analytics, corporate legal teams are also seeking more support via managed services that alleviate resource burdens for large, complex matters, while giving in-house counsel a healthy degree of control over their investigations and litigations.

The trends and challenges covered in this series point to the growing importance of data expertise in mitigating current and future corporate risk. Given the rapid pace at which the data landscape is evolving, data experts must have the ability to adapt quickly, both in terms of the data that exists within corporations and how that data impacts the business. Data experts need to become more creative in their view of what data to consider in a legal or regulatory matter. They will also need to understand where that information exists in the organisation and the best strategies to facilitate search and analysis across large pools of diverse data types as historic ‘collect everything’ approaches are long gone.

Today, and in anticipation of future needs, organisations need data experts who are highly adaptable and can bridge the gap between the substantive issues of an investigation and the technical details of the data stored within the corporate IT estate. This requires a deep technical aptitude—across not only traditional data sources (such as documents, transactions and e-mail), but also new and emerging types (such as Teams or Slack)—as well as experience with the nature of investigations, data privacy, regulatory compliance, litigations, and document review.

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The views expressed herein are those of the author(s) and not necessarily the views of FTI Consulting, its management, its subsidiaries, its affiliates, or its other professionals.