Hybrid Work Requires New E-Discovery Approach

The COVID-19 pandemic caused a radical shift away from office spaces and toward more flexible work-from-home environments and routines. Now, more than 20 months later, the majority of businesses appear to be adopting a hybrid work model with employees splitting their work hours between home and the office. According to a recent study by Microsoft, nearly two-thirds of business leaders are considering revamping their physical office spaces to better accommodate hybrid work environments.

While such an approach delivers numerous benefits for businesses and employees including better work-life balance and higher levels of productivity, it also introduces a host of new challenges for data security and compliance, as well as for e-discovery. E-discovery refers to the process and the software used in the retrieval, analysis and sharing of electronically stored data for lawsuits or other needs. These challenges are centered mainly on three trends emerging from the shift to home working:

1. An increasingly distributed workforce: The rise of remote working has led to teams being dispersed over larger geographies and across more locations. Many businesses have expanded their recruitment efforts and widened their networks to encompass remote employees in other countries. 
2. A growing reliance on personal devices for work activity: A recent study found that one-third (33%) of workers are using personal devices such as computers and smartphones to facilitate home working instead of using devices issued by their employer.
3. Critical communication is shifting to messaging apps: In the same study, 73% of employees disclosed they prefer using mobile and consumer messaging applications like WhatsApp for work rather than dedicated business communication platforms. 

For businesses, these factors pose a substantial increase in corporate risk, putting a significant burden on corporate investigations and making the e-discovery process more difficult. Not only are employees and their devices less accessible than they were, but the increased use of personal devices—often lacking proper security protocols and using unsecured networks—leave corporate data increasingly vulnerable to theft or loss. Moreover, heightened privacy concerns and the possibility that personal data could be inadvertently swept up in e-discovery processes can make employees reluctant to surrender their devices to investigators, should they be needed.

Consequently, many companies find themselves in an unforgiving situation. How can they operate a hybrid work model and maintain the ability to carry out corporate investigations and e-discovery when necessary? 

A growing number of data collection solutions and cloud platforms are available that help enterprise investigators adapt to and overcome the challenges of a hybrid workforce. Many of the solutions are purpose-built for the task at hand, making the e-discovery process easier for everyone involved, even across fragmented environments. 

Some solutions now have the ability to centrally access and collect data remotely from virtually any digital device (iOS and Android devices, macOS and Windows computers, for example) regardless of whether it is inside or outside a corporate network. This eliminates the costs and logistical challenges associated with sending investigators directly to an employee’s location. 

That said, privacy understandably remains a key concern for any employee involved in the e-discovery process. For this reason, leading providers have introduced safeguards into their solutions to ensure that only information relevant to an investigation is taken from a device. Accordingly, employees must give their explicit consent before any data can be collected, with records of this permission automatically created as part of the discovery process for audit purposes.

Once collected, investigators can use these same solutions to view consolidated chat threads and recover deleted messages from messaging and chat applications, ensuring nothing important gets overlooked or missed. This gives investigators the ability to quickly build a comprehensive, 360-degree picture of employee communication across every type of working environment. It also means they can piece together an accurate timeline of events and confidently uncover the truth – whether providing evidence that supports or refutes claims of employee misconduct.

With businesses acknowledging that hybrid work is here to stay, they must adapt their processes to solve the corresponding operational and security challenges that it creates. When it comes to corporate risk and e-discovery, a combination of fragmented workforces, changing work habits and privacy concerns have rendered many traditional approaches obsolete. However, advances in technology mean these hurdles can be overcome through the power of the cloud, for those willing to embrace it.