2020 Forecast: Expect Landmark Changes in E-Discovery, Data Privacy and Investigations
Across our practice areas, we asked our experts to share their predictions for what will shape legal, compliance and information governance in the coming year. Below is a roundup—across new laws, emerging technology and key industries—of what they expect will make the biggest impact to businesses worldwide.
Predictions from the Information Governance Privacy & Security (IGP&S) practice
- Sonia Cheng, Managing Director: Data privacy is starting to collide with M&A activity. Recently, data protection authorities announced the intent to fine a major hospitality company more than $100 million for a previous breach of a legacy database belonging to a company it acquired. The purchase price in another major acquisition was discounted by $350 million because the target company was late in disclosing a previous data breach. IG and management of legacy data will increasingly impact M&A valuations, and companies looking to be acquired will need to get in front of this issue.
- T. Sean Kelly, Senior Director: In a post-LIBOR space, financial institutions will face new obligations to monitor data and communications for anomalies that are indicative of nefarious or fraudulent activity. I think 2020 will bring renewed best practices and new technology to help compliance teams proactively monitor data for this need.
- Eric Pender, Director: The new year will mark a major shift in data privacy law in the U.S., with the activation of the California Consumer Privacy Act (CCPA). On the heels of GDPR, the inflection point of this shift, CCPA will ultimately bring an end to the ‘wild wild west’ of data management. Data will continue to be a highly valuable resource, but with limits. Costs and risks associated with managing data in compliance with privacy laws are certainly increasing, but in 2020 we’ll see proactive companies—ones that know what data they have, how they use it, where it exists and who has access to it—gaining a competitive advantage on this front.
- Deana Uhl, Senior Director: Consumers are going to be more aware of how their data is being used and increasingly ready to exercise the new rights and controls they have over it. While the massive data breaches seem to be slowing down, consumer concerns around privacy are on the rise. This will lead to an increase in data subject access requests, right of action claims and other activity related to consumer privacy rights.
- Rena Verma, Senior Managing Director: Healthcare and patient data is going to dominate the data privacy headlines in 2020, as Big Tech expands into healthcare and medical records analytics. Healthcare providers that adopt new vendors and apps for medical records will find it increasingly difficult to balance easy access to patient data with protecting patient privacy. Careful review of vendor contracts and business associate agreements with providers of cloud storage and medical record apps will be essential—and healthcare institutions that go even further by revamping information governance programs will be far more prepared to address the emerging data privacy landscape in the U.S.
Predictions from the E-Discovery Consulting & Services practice
- Tim Anderson, Managing Director: E-discovery will undergo more evolution and change in the coming year. For one, we’ll see more built-in e-discovery functionality among major technology providers like Microsoft, Google, Slack, Dropbox, etc., which will make governance and e-discovery across a range of platforms and data types easier. We’ll also see more of a shift towards ‘connect’ versus ‘collect’ and ‘enrich’ versus ‘process’, as lawyers look for ways to gain faster access to key insights. E-discovery teams will become more sophisticated in letting the data speak for itself where it lives, as opposed to transferring it to a new location for processing and analysis.
- Andy Johnston, Senior Managing Director: Legal teams are increasingly relying on analytics as a central and integral part of document review. We’ll see more of this in 2020, along with an increase in reliance on AI and machine learning to identify privileged material to further control the costs of privilege review and identification of other key documents. While data challenges aren’t likely to change much, what will change are the types of solutions legal teams use to apply them. Tools like analytics suites, large scale early case assessment tools and behind-the-firewall data filtering will be integrated in non-traditional ways to solve common problems.
- Richard Palmer, Senior Managing Director: This year is going to see a big upturn in the push to repaper trillions of dollars’ worth of LIBOR contracts. As the market starts to adopt alternative rates in advance of LIBOR being phased-out in 2021, financial institutions will need to pivot how they manage their contracts to effect this transition with minimal disruption and cost to their business. This will drive a major thrust in global interest and adoption for new contract management technologies and services in 2020.
Predictions from the Contract Intelligence Practice
- Ryan Drimalla, Managing Director: In 2020, financial institutions are going to lean heavily on contract intelligence solutions to support their efforts to phase out LIBOR and renegotiate agreements according to new and evolving standards. Addressing the massive volume of contracts subject to LIBOR transition will be a major undertaking, and artificial intelligence technology will play a key role in enabling the process. Teams will need flexible technology solutions that can automatically identify contracts subject to transition, and pivot to align with updated standards as they emerge.
Predictions from the Digital Forensics & Investigations practice
- Dan Roffman, Senior Managing Director: Email will be increasingly displaced in favor of collaboration suites, messaging platforms and other apps that enable easy communication between employees and with customers. This will impact forensic investigators and e-discovery teams that need to access records for litigation and investigations. Likewise, disappearing messages—from apps like Wickr, Signal and Telegram—are popular among workers for their privacy, security and encryption features. But they are also enticing employees to overshare, which can lead to all sorts of data retention issues and compliance risk for corporations. On this front, I expect we’ll see ephemeral messaging play some sort of a major role in a high profile litigation or political process in the coming year.
Predictions from the Blockchain Advisory and Cryptocurrency Disputes, Investigations and Litigation (CDI&L) practice
- Steve McNew, Senior Managing Director: Enterprise blockchain will continue to make great progress, and many of the innovations that are emerging right now will gain meaningful traction in 2020. This will include blockchain as a viable solution for smart city initiatives, consumer products and supply chain disruption. More blockchain companies are going to enter the market with private distributed ledger technology software, SaaS and network solutions, and blockchain spending will increase significantly. Early adopter pilot programs will begin to show ROI and other measurable benefits, which will drive more adoption and interest. As the space grows, experts will build consensus for blockchain related information governance frameworks and guidance.
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.