The GDPR: More a Collaboration Opportunity than a Data Hindrance?

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15Oct2018

The GDPR: More a Collaboration Opportunity than a Data Hindrance?

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By Zach Warren, LegalTech News Editor-in-Chief

The GDPR was front and center at the “International e-Discovery and Data Protection” session of Relativity Fest 2018, where panelists said it can be an opportunity to bake privacy into the discovery workflow.

It’s a radical concept, but stay with me here. Perhaps, in spite of the extremely large potential fines and the headaches it has caused IT teams worldwide, the General Data Protection Regulation (GDPR) is something that should be embraced?

At the very least, some analysts and attorneys engaged in European e-discovery believe so.

“Eighteen months ago, there seemed to be a hostile attitude in the U.S. against the GDPR.  Now, people seem to accept that it’s a good thing, that privacy is a good thing,” said Karyn Harty, an Ireland-based partner at McCann FitzGerald.  In that time, she has seen a move away “from the perception that data is a commodity that can be bought and sold, rather than the European attitude that it’s a fundamental human right.”

Unsurprisingly, the GDPR was front and center at the “International e-Discovery and Data Protection” session of Relativity Fest 2018.  But rather than treat the regulation as a burden to discovery review or cross-border data transfer, the assembled panelists said it can be an opportunity to bake privacy into the discovery workflow.

For his part, Karl Hennessee, senior vice president of Litigation, Investigations and Regulatory Affairs at France-headquartered Airbus, said he views the GDPR as a framework to discuss the privacy of the people whose rights he represents:  Airbus employees.

He told the assembled crowd, “I would ask you that the GDPR should perhaps be embraced” as a representation “of the people that we represent.”

C-suites are certainly embracing the GDPR.  Harty noted that “five to ten years ago, it would have been a data protection officer (DPO), if there was a DPO, and they would have had trouble getting the attention of the board.”  But now “the vast majority of our clients are really settling down into GDPR compliance.”

And that view is reverberating across the organization. Heidi Stenberg, principal, Assurance Services, Fraud Investigation and Dispute Services, EY, noted that the GDPR has been a jumping off point for attorneys to more closely collaborate with the IT department.

“I think they have no other choice than to communicate effectively for this reason. It’s a higher stakes game now,” she explained.

Similarly, Stenberg said, the GDPR has spurred technology developers to work with attorneys to develop novel solutions for cloud storage, raising the level of innovation across the legal department as a whole.

“They’re looking through that lens and looking where to store that data, thinking about it from start to finish.  I think perhaps that was missing previously,” she added, also noting the blockchain and automated redactions as two other technological areas that could emerge in this space.

The GDPR could even spur attorneys to work with litigation support professionals in a new way.  Johnny Lee, principal and national practice leader for Forensic Technology Services at Grant Thornton US, noted that when it comes to e-discovery platforms, “you can repurpose those tools to very great effect … doing things they were never designed to do.”

The entire point of e-discovery, he added, is designed “to shrink the haystack before you search for the needle.”  This thinking can be applied to internal investigations, privacy implementations, and more.  “While that was a hard sell for me ten years ago, it’s an easier sell now because the licensure has caught up with the market.”

Of course, there is always the issue of working with foreign regulators, and the panelists all agreed that there remains some portions of the GDPR that need to be clarified. But even with some lingering confusion, the panel said that the GDPR can provide an opportunity to take a more collaborative tone with regulators than U.S. companies are perhaps used to.

In fact, Lee said, “If you’re going to innovate in this space, it’s important to have a good working relationship with your regulators.” He added that regulators are receptive to an argument from “the ability to reach across the aisle and say, ‘The rule has this.  If I do that, I run afoul of that.’”  He got a laugh from the assembled crowd that if you don’t cooperate, “it’s like living with an angry in-law because they’re not only pissed at the prior exchange but now they’re not willing to help you with the next one.”

Indeed, in her experience, Harty said European data protection commissioners are taking a pragmatic approach, especially when it comes to low-level cases. “They’re actually being very helpful in saying, yes, we’re going to look into this further or, no, you can consider this case closed,” she explained.

Plus, even with those collaboration benefits that can be gained from the GDPR, the penalties do indeed loom large. Harty relayed what a European data protection commissioner told the crowd at a recent Sedona Conference meeting:  “You think complying with the GDPR is expensive? Try not complying.”

This article first appeared in Legaltech News.

Zach Warren is the editor-in-chief of Legaltech News. He can be reached at zwarren@alm.com.

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