Lighthouse Blog

A Second Request for a Hart-Scott-Rodino (HSR) filing thrusts companies and their counsel into a high-stakes race against time, complicated by massive data volumes and strict requirements. Policy and enforcement shifts by the Federal Trade Commission (FTC) and Department of Justice Antitrust Division (DOJ), brought on by a change in presidential administrations, complicate the landscape even further.In early 2022, Lighthouse analyzed the data and recent history of Second Requests in our whitepaper, the 2021 Second Request Trends Report, to help predict activity this year and beyond.Now, as we approach the halfway point of the Biden administration’s inaugural term, it seems a pertinent time to check in on the agencies’ attitudes and actions thus far, and what they mean for mergers and acquisitions — both today and in the future. To grasp the shifts in HSR Second Requests over the past two years, Lighthouse's Bill Mariano interviewed Corey Roush, a partner at Akin Gump who leads their antitrust and competition practice, and is head of their FTC-facing consumer protection practice. Below is an excerpt from their conversation.The Biden administration has now had more than a year and a half to shape its approach to mergers and acquisitions. How do you view the landscape at this point?I see outward signs of moderate hostility towards mergers that have created general uncertainty. This owes mostly to statements by leadership at both agencies rather than unexpected actions. For the most part, we are seeing Second Requests issued when one would traditionally expect them, and we are also seeing some high-profile public transactions like Elon Musk/Twitter and PMI/Swedish Match avoiding Second Requests.What have regulatory agencies done to create this atmosphere?A handful of things, from making specific policy changes to expressing general disdain for consolidation. The discourse coming from regulators is guided largely by a July 2021 Executive Order from President Biden. Inspired by that order, FTC Chair Lina Khan told Congress that “significant consolidation has undermined open and competitive markets” so it’s her agency’s responsibility “to redouble [its] commitment to policing mergers.” That attitude was echoed by Assistant Attorney General Jonathan Kanter, head of the Antitrust Division at DOJ, who said mergers “can harm downstream consumers and upstream workers at the same time that they foster coordination or exclusion in adjacent markets. Everyone loses, except extractive powerful firms in the middle.”Disdain for consolidation, at least among the largest companies, is an increasingly bipartisan posture, by the way. Last spring Senator Josh Hawley (R-Mo.) introduced the Trust-Busting for the Twenty-First Century Act, complaining that a small group of “woke mega-corporations control the products Americans can buy, the information Americans can receive” and so on. The legislation would help regulators “crack down on mergers and acquisitions by monopoly companies” and even “pursue the breakup of dominant, anticompetitive firms.”There’s the hostility you mentioned. What about enforcement? How are they following through on this rhetoric?Overall, by expecting companies to accommodate the agencies. You see cases where companies agree to delay consummation until three or four months after complying with a Second Request, so that agencies have more time to review. And even when companies agree to delay consummation under a timing agreement, the agencies may ask for even more time. Last year, 7-Eleven was three days away from closing an acquisition when the FTC asked for more time — and this was after the company had already given the Commission more time on four separate occasions. The company was able to close the deal as planned and without a Commission vote because it had already negotiated a consent decree approved by the FTC staff. Two Commissioners responded with a public threat stating, “The parties have closed their transaction at their own risk. The Commission will continue to investigate to determine an appropriate path forward to address the anticompetitive harm and will also continue to work with State Attorneys General.” After all that, a “new” consent order was issued that was almost identical to the one that the company had previously agreed to and was approved by the Commission on a 4-0 vote two months later.It seems like “close at your own risk” is becoming a trend now?It is. The FTC has been issuing letters since the fall of 2021 warning parties whose regulatory review periods had expired or were about to expire that the agency was continuing to investigate the transaction, so parties who decided to close on their planned date would do so at their own risk. By early 2022, the DOJ joined the fray, issuing at least one warning letter that I’m aware of. So far, though, it appears to be a red herring. First, parties have always closed with some risk of a post-closing challenge. For instance, the FTC is currently challenging Facebook’s acquisition of WhatsApp and Instagram—deals that were consummated eight and ten years ago, respectively. Second, in the current landscape, companies have been closing despite receiving the letters, and we haven’t seen any efforts to unwind those deals. Nor have we seen many investigations actually continue. What other policy changes have altered the landscape for HSR and Second Requests?The big one in my mind affects prior approval. In July of 2021, the FTC — by a 3-2 party-line vote — adopted a new policy that requires “buyers of divested assets in Commission merger consent orders to agree to a prior approval for any future sale of the assets they acquire in divestiture orders.” This rescinds a nearly 30-year-old policy and creates real complications in the divestiture process. To state the obvious, an asset is less attractive if it comes with a restriction on its sale and a requirement that the divestiture buyer sign a consent decree with the FTC. We now see these agreements in consent orders regularly. That said, we have also seen at least one consent order that did not require the divestiture buyer to sign on. What distinguished that case from the others is unclear.What does this all mean going forward? What should parties expect from regulators?Longer reviews, with unpredictable engagement. Some deals that do not present clear competition problems are taking longer than one might traditionally expect. At the same time, we have avoided Second Requests even though, at first glance, there were competitive overlaps and/or vertical relationships. In those cases, along with competitive analysis proving the transaction wasn’t troublesome, our early engagement with the agencies appeared to be key. The uncertainty applies mostly to certain high-profile, high-scrutiny areas like tech, pharma, and agriculture. Deals outside of those areas appear to be more predictable and consistent with past scrutiny. So, will 2023 be more of the same?Most likely. Legislation like the American Innovation and Choice Online Act and Open App Markets Act have bipartisan support. Alvaro Bedoya was confirmed as the third Democrat Commissioner in May. And the antitrust agencies are working on new merger guidelines that could replace the current Horizontal Merger guideline and provide more guidance on vertical merger enforcement (the FTC rescinded the existing vertical guidelines last year). Given all this, we expect the trends of hostility and uncertainty to magnify in the near future.Hear from other experts and dive into the numbers in the 2021 Second Request Trends Report.antitrust; ediscovery-reviewediscovery-review, digital-forensics, antitrusthsr-second-requests; blog; mergersbill mariano

Cloud computing dates to the mid-1990s – so why is this relatively old concept still such a hot topic? Haven’t we figured it all out by now? And isn’t the benefit of today’s SaaS cloud environments that someone else, namely the SaaS provider, handles software management? What else is there to figure out? Having spent the last several months talking to legal, compliance, and IT professionals about their Microsoft 365 environments, I am confident that there is still a lot that corporate IT departments are grappling with. In fact, a recent survey conducted by Lighthouse of 106 IT managers and executives found that although most organizations had a change management process in place for on-premises feature updates and upgrades, and most organizations planned to have change management in place for enterprise-wide SaaS technology updates in the next five years, only 16% had something in place today.[1] To better harness this technology as it continues to evolve and to minimize risks along the way, it’s important to understand why these change management gaps exist, what their impact is, and how legal and IT teams can work together in new ways to close them.Managing the Evolution of SaaSThe adoption of enterprise SaaS cloud technologies has only become prevalent in the last decade and growth has skyrocketed over the last couple of years. In fact, Microsoft 365 had 23.1 million consumer subscribers five years ago (Fiscal Year 2016) and that number has grown to 58.4 million. As such, IT organizations have not had to support SaaS enterprise offerings at scale until very recently and today most IT departments are supporting both on-premises and SaaS cloud environments. The first priority in supporting this explosive adoption was to implement and migrate over to the new system. It is only recently that focus has shifted toward governance and processes around these systems.Even with a newer focus on process, one of the touted benefits of SaaS cloud technology is less maintenance and software support by the in-house IT team. Of course, there is the need to set up process to resolve user questions and to ensure systems have been set up to facilitate the business running properly. But, planning and executing hardware or software upgrades is mostly managed by a third-party provider so there is not an urgent need to set up robust change management. In addition, the old change management process where major developments are analyzed, tested, and timed for deployment to desktops still applies to Microsoft 365.However, using the old process for new applications can have drawbacks. First, not all updates that Microsoft or others make are configurable updates where there is a choice on how, and whether, to implement. Second, if users are logging into a web environment (as opposed to desktop apps), IT teams don’t necessarily have control over the version their users are utilizing. Finally, given that most organizations have differing levels of IT permissions, meaning some groups are upgraded sooner than others, teams must move quickly to handle unpredictable and varied update schedules. With the speed and variability of new feature updates, the old process may not be agile enough to handle them. The differences between SaaS and on-premises environments (where you have full control of the upgrade schedule) can leave some gaps even when organizations review, analyze, and test the roadmap and updates from the Microsoft Message center.The old process often fails to prepare the business for these changes because IT, legal, and other teams are not always communicating about the broader risk or implementation implications. Because the IT team is focused on availability and scalability, it often misses how certain changes can introduce business risks outside of their ken. Solely relying on IT professionals to determine the broader impact of updates can mean that business, regulatory, and other risks outside of IT’s awareness are overlooked.Measuring the Impact of UpdatesWhether these management gaps are tolerable is a risk decision that each organization must make—one that can put the user experience in tension with a developed IT process. In discussions with legal, compliance, and information governance professionals that focus on SaaS services, handling the cadence and speed of these updates is a concern that keeps them up at night. But, quickly providing users new features has considerable benefits for the business too. It’s important for IT to prioritize ensuring that users can access their business data and that the business can continue without interruption over cumbersome update management.When weighing these risks and benefits it’s important to fully appreciate their potential impacts. An example of where these priorities conflict is highlighted in a change around Microsoft Teams meeting transcripts. In March 2021, Microsoft made an update that allows for a live transcript of certain Teams meetings. In November 2021, Microsoft expanded that functionality to Teams Channel meetings and upgraded the features of live transcripts to include name attribution to the speaker. This is helpful functionality for users and, given that it is an automatic upgrade, there may be little to do from an IT perspective. From a risk and legal perspective, however, there are a couple of key considerations. First, where is the transcript stored after the meeting and do retention policies apply? Second, is the data subject to ongoing regulatory or litigation requests and how is it accessed? The answers to those questions are complicated by the fact that the location of the data depends on whether a user downloaded the transcript after the meeting. Many IT organizations caught this change by reviewing the Microsoft Message center for updates—and in doing their own testing they determined that disabling the functionality was the best course of action. This was an update with obvious data ramifications that outweighed the potential benefits in a risk assessment from both IT and legal. For updates that are less obvious, IT may not have consulted legal. For updates where the value to users may seem to outweigh the risk, where the risks aren’t initially apparent, or when there are no configuration options—IT may have a more challenging decision to make.Reimagining a Change Management ProcessHaving a cross-functional framework in place to discuss and implement these types of updates is key to managing changes. Many organizations have some sort of accountability in place around updates—an individual or group of people are responsible for reviewing the Microsoft Message center. Although this structure is lower in cost and requires fewer resources, it has a few drawbacks. First, if only IT is involved, you may have only one perspective on the impacts of updates and that can be too narrow to determine the effects on the broader business. Second, many organizations do not have a tracking mechanism to determine what Microsoft updates they have read, evaluated, tested, and taken action against. With dozens of messages, many of which don’t need action, it is easy to lose track of what has been evaluated. Finally, if there isn’t clear accountability with dedicated resources the process can lose legitimacy and fail. Organizations who choose to minimize their business risk do not have to put in place a heavy structure to manage updates. In fact, the process around on-premises software upgrades can easily be adapted to the cloud situation.The single most important thing that an IT team can do for an effective SaaS support practice is to adapt and enforce existing change management and organizational controls. More specifically, IT organizations should consider:Dedicating a resource to track and review changes from service and cloud providers to ensure updates and changes are properly evaluated for risk and business continuity.Relying on a robust change management system with stakeholders throughout the organization to provide clearly articulated approval, risk identification, testing, and risk management.Partnering with your compliance team to ensure adherence to governance frameworks, organizational commitments, and client requirements. The compliance function is trained to manage risk and is uniquely chartered with authority and independence with a company’s governing body.Collaborating with legal. Lawyers are trained to spot issues and manage risk for the entire business. Often times, individual departmental stakeholders are responding to team-level incentives. Legal teams are also learning to adapt their governance structures to evolving cloud solutions.Leveraging the Project Management Office to ensure that stakeholders and risks are identified at the start of any specific project (i.e., measure twice, cut once).One of the most effective ways to get the right stakeholders’ input is to create a Change Approval Board (“CAB”) with subject matter experts from every business group to meet on a periodic basis. The CAB provides a framework that ensures IT has input from across the business while still giving it the opportunity to own and manage the support of the software.One of the benefits of SaaS technologies is the ability to utilize and optimize with the newest features and to take some of the hardware management burden off IT. By putting in place a cross-functional team to review and manage the update process, you can mitigate your organizational risk while allowing users take full advantage of the benefits.[1] In February 2022, Lighthouse surveyed 106 IT managers or above who had Microsoft on-premises and now have Microsoft 365. The survey found that only 16% had implemented a change management process for M365 and 62% of organizations planned to implement one in the next 5 years.microsoft-365; chat-and-collaboration-data; information-governancemicrosoft, cloud-migration, cloud-services, blog, microsoft-365, chat-and-collaboration-data, information-governance,bloglighthouse

To celebrate Women’s History Month, the Law & Candor podcast returns for season nine to interview women in the legal and technology industries who are breaking bias and creating more inclusive work cultures, advancing technological innovation, and keeping a pulse on the latest issues facing corporations and law firms.Law & Candor co-hosts, Rob Hellewell and Bill Mariano, return as our guides through a variety of dynamic topics, including balancing risk and innovation, AI and HSR Second Requests, and the evolving data privacy landscape. Check out this season’s lineup belowLeading in Legal with Inclusive MentorshipLegal’s Balancing Act: Risk, Innovation, and Advancing Strategic PrioritiesMapping Updates to Data Privacy Regulations WorldwideSpring Cleaning for Legal Teams: The Cloud and Defensible Deletion of DataClosing the Deal: Deploying the Right AI Tool for HSR Second RequestsMicrosoft 365 and the Age of Automation Listen now or bookmark individual episodes, and be sure to follow the latest updates on Law & Candor’s Twitter.And if you want to catch up on past seasons or special editions, click here.For questions regarding this podcast and its content, please reach out to us at info@lighthouseglobal.com.diversity-equity-and-inclusionblog, diversity-equity-and-inclusion,bloglighthouse

The landscape for Hart-Scott-Rodino (HSR) filings has undergone immense flux over the last two years. The economic upheaval of the COVID-19 pandemic and regulatory shifts of a new presidential administration have impacted both the volume of large merger and acquisition (M&A) transactions and the scrutiny they receive from regulatory agencies. This makes it hard for businesses and law firms to know what to expect from upcoming M&As, including the likelihood of receiving a Second Request and how regulators will handle that investigation.Data on recent Second Requests can help by giving parties at least a general sense of what their peers are experiencing. Official numbers for 2021 won’t be published until autumn of this year — but we can look at past trends to try to predict those numbers to a reasonable degree.A close reading of historical data and current context suggests something of a paradox: The number of Second Requests in 2021 was likely fairly high but, at the same time, may have represented a historically small share of the year’s HSR filings. This is due to the extraordinary surge in HSR transactions and other factors, which are summarized below. For a full analysis, see our 2021 Second Request Trends Report.HSR filings plummet and rebound amid pandemic In 2020, the economic lockdown and business hesitancy caused by the COVID-19 pandemic brought HSR filings to their lowest total in 7 years. The Federal Trade Commission (FTC) and Department of Justice (DOJ) reported 1,673 filings for the year, of which 48 resulted in Second Requests. While this is less than the 61 Second Requests issued in 2019, it reflects the same annual percentage. That rate of 3% is slightly higher than the rates in both 2017 and 2018, which landed between 2 and 2.5%.Then, the economy surged in late 2020 and early 2021, bringing HSR filings with it. Preliminary data from federal agencies show HSR filings in 2021 more than doubled from the year before, reaching 3,644.Second Requests in 2021 likely resembled 2020 Most likely, the number of Second Requests in 2021 was close to the total in 2020. However, that means the percentage rate of Second Requests versus total HSR filings likely dropped significantly, by half or more.This is because maintaining the 3% rate from 2019-2020 seems unattainable. At that rate, agencies would have to investigate more than 100 proposed M&As — far beyond anything we’ve seen in the last 20 years.It’s also far too many for the FTC and DOJ to manage, given their recent struggles with capacity. Since December 2020, both agencies have made multiple budget requests and policy changes to help them keep up with the volume of transactions and workload associated with them. For example, FTC officials have publicly called for more time to review filings, saying the traditional review period of 30 days hasn’t, “kept pace with the increased volume and complexity of transactions and their related data and documents.”A more realistic rate for 2021, therefore, is somewhere between 1 and 2%. That would produce around 50 Second Requests — a total consistent with last year, as well as the average annual number over the last 20 years.HSR is more complex for everyone While HSR filings have clearly bounced back from their dip in 2020, the overall Second Request landscape is marked by complexity and uncertainty. Officials continue to make and seek revisions to regulations, making the terms of engagement a moving target. The soaring data volumes and diverse data sources cited by the FTC pose challenges for companies as well, who may find it increasingly difficult and expensive to meet HSR deadlines and other requirements.This was evident in a recent survey conducted by Lighthouse of more than 100 experts from corporations and law firms, who selected the following challenges as top of mind during the Second Request process:Getting the data in and processed quicklyEnsuring the deal goes throughProducing quicklyChoosing the right technologyThese responses underscore the need for parties to accurately read the landscape and leverage outside tools and expertise to improve speed and efficiency.For a deeper dive into the Second Request landscape, including insights from experienced attorneys in the field, a detailed primer on regulatory changes, and what to expect in the current year, check out our 2021 Second Request Trends Report.antitrusthsr-second-requests, blog, acquisitions, mergers, antitrusthsr-second-requests; blog; acquisitions; mergerslighthouse

This year’s Legalweek conference was back to an in-person event in New York City — a significant change from the virtual format in 2021. Folks who hadn’t seen each other in person in over two years (or met for the first time in person) were able to talk and exchange ideas while sharing a hug, a meal, or a drink. Over and over again, the words, “It’s so good to see you, in person!” echoed throughout hallways and conference rooms. But as good as it feels to reconnect, it was also abundantly clear that the pandemic has fundamentally and permanently altered our world. There is no return to the “normal” we knew prior to March of 2020. The pandemic has changed us. Over the last two years, we have reprioritized what’s important in our lives, which has changed not only where we work, but how we work. And technology, as it always does, has evolved to keep up with those changes. As we emerge into this new world, our eyes blinking in the sun, these changes may fill us with anxiety. Change, after all, can be scary. But as Don Draper, the fictional Madmen character, once said when talking to a client about cultural change in 1960s New York City: “Change is neither good nor bad, it simply ‘is.’ It can be greeted with terror or joy — a tantrum that says, ‘I want it the way it was,’ or a dance that says, ‘Look, something new!’" Below, I’ve outlined some key industry changes that were discussed throughout Legalweek, as well as how legal technology companies can help law firms and organizations greet these changes as an opportunity, rather than something to be feared. The virtual workforce revolution is here to stay The massive and abrupt pivot to remote working for organizations and law firms is not a blip that will reverse itself once the pandemic “ends.” Prior to 2020, it was a trend bubbling under the surface. The pandemic simply accelerated that trend more quickly than previously anticipated, and in doing so, permanently changed the landscape of white-collar careers. Most young adults who entered the workforce over the last two years have never known a world where work had to take place solely in an office setting. Meanwhile, more experienced workers—suddenly able to reap the flexibility that remote working provides—also do not seem keen to go back to a more rigid office-based work environment. And the younger generations waiting in the wings to enter the workforce over the next five to ten years have grown up learning and socializing in much more immersive virtual settings than any previous generation. As they become consumers and employees, technology will continue to evolve to accommodate their comfort interacting in those virtual environments. With a worldwide workforce shortage that does not seem like it well ebb anytime soon, this modern workforce will have the upper hand when it comes to demanding a more flexible, remote work environment, as well as access to the technology that facilitates it. Thus, organizations will not only have to adapt to these changes—they may need to lean heavily into them to survive. We can see the harbingers of this sea change even today. More and more companies are entering the metaverse , investing in NFTs, and utilizing virtual reality (VR) technology to perform work that would have typically been done in person or on flat screens (like training new employees). Microsoft, developers of one of the world’s most heavily used cloud collaboration and work platforms (M365 and Teams), also announced plans to introduce VR technology in 2022 that will work in conjunction with their existing technology, facilitating a more immersive virtual remote working experience for workers around the world. All these potential new data sources will significantly increase challenges from a data governance, data privacy, and eDiscovery perspective. But rest assured, the work that legal technology providers are doing now to put better systems in place to handle existing cloud-based tools will help lay the framework for how we handle data from the metaverse and other new sources in the future. For example, some eDiscovery providers and lawyers are already advocating for a move away from the traditional eDiscovery “custodial” ownership framework in order to accommodate how cloud-based data is stored and interacted with in organizations. Forward-thinking eDiscovery service providers are also advocating for a more holistic view of eDiscovery, one that begins at the data source and spans the entire data lifecycle—which will be a necessity as we move into a more virtual-based workplace. Technology providers are also starting to factor eDiscovery, data privacy, and compliance issues into future roadmaps and upgrades—making it easier to manage, search, and export data from new data sources for eDiscovery and compliance purposes. There is no magic bullet—a risk balancing act The shift to a more virtual world significantly increases risk for organizations and the law firms that represent them. Utilizing cloud-based tools and newer technology to facilitate a more virtual workplace will be increasingly important for organizations. However, due to the volume of data, and the speed at which it’s created, organizations will have to accept increased risks related to data privacy, data security, compliance, eDiscovery, etc. In effect, in today’s cloud-based world, there is no magic bullet that will completely eliminate risk caused by the proliferation and speed of data. Organizations are learning to balance risk and innovation when it comes to technology, rather than take an “all or nothing” approach. To do so, stakeholders from across the company must have a seat at the table when deciding how much risk they’re willing to take on in order to keep their employees productive and customers satisfied via technology. Knowledgeable legal technology service providers are already helping organizations adapt to this balancing act. Companies that have dedicated cloud technology experts can help their clients understand the technology they are using and how it works within their own environment. They can also help their clients staying abreast of ever-evolving risks presented by cloud-based technology and provide risk mitigation strategies that fit within the priorities of the organization. An increasing need to lean on managed service providers Today’s cloud-based tools and applications are increasingly complicated and present increased risks that must be managed. Additionally, due to global workforce shortages (i.e., “the great resignation) and unpredictable economic conditions (caused not only by the pandemic but by market uncertainty around Russia’s invasion of Ukraine, increasing gas prices, supply shortages, inflation, etc.), employees are often being asked to do more work with less budget and resources. Together, these two factors have led organizations and law firms to lean more on outsourcing specific segments and technology processes to outside service providers. The benefits of partnering with a trustworthy service provider to manage segments of the organization that require specialized expertise are manifold. The right service provider will have experts on staff who are wholly dedicated to understanding and managing specific technology, processes, and risk. Offloading management to those partners allows organizations to refocus on their own underlying mission. Service providers may also be better positioned to advocate for a company’s needs with pure technology providers because they have an existing partnership with those companies. This can help organizations fill technology gaps without spending weeks or months trying to negotiate with technology providers. Partnering with service providers also allows the organization to offload risks associated with the management of specific technology or processes to a company that is much better equipped to understand and take on that risk. Outsourcing work to a service provider can also significantly lower overhead costs and allow organizations to stay leaner and nimbler — empowering them to focus on tasks that add value to the underlying business while providing relief to overworked employees. In short, a good legal technology service partner can become an extension of an organization’s own team while lowering overhead and risk. Diversity can no longer be just a numbers game Over the last few years, we saw organizations and law firms focusing more on diversity efforts. Often, this focus was merely numerical, intended to increase the headcount of diverse staff. While this effort is well-intended (and long overdue), we are now seeing more demand for a deeper commitment to diversity and inclusion that goes beyond statistics, diversity training, and simple corporate statements. Today’s workforce, spurred on in part by a new generation of employees, are demanding that organizations be truly committed to diversity and equality on a deeper level—with action that is evident across the organization, from leadership profiles, to internal and external teams, to opportunities for advancement, to vendor selection, etc. And due to labor shortages, this new workforce has the power to effect change by refusing to work for companies that can’t demonstrate this type of commitment. Both the legal and technology industries have historically suffered from a lack of diversity. This is evident from the diversity gaps we still see in the industry today. However, this lack of diversity also presents an opportunity for legal technology companies to make a more significant impact. There is no downside to leaning into diversity. In fact, studies have shown that diverse companies are more successful. Legal technology companies have an opportunity to lead the way by putting dedicated systems in place to ensure that their leadership is diverse, that diversity is represented across all teams and company segments, that annual review processes and career advancement within the company are focused on equality, and that employees from underrepresented communities feel supported and seen within the company. Legal technology companies also have a unique opportunity to support groups that are dedicated to increasing legal and technology education and training opportunities for underrepresented communities (which is often at the root of the diversity problem across both industries). In this way, legal technology companies can help lead by example for the organizations and law firms they serve — showing that truly, a more diverse company is a more innovative company. Conclusion The world we are facing in 2022 is much different than the pre-pandemic world we left behind. The changes we are encountering today can present significant challenges to organizations and law firms — but they also present unique opportunities for growth. Legal technology companies can help both segments take advantage of these opportunities and emerge into a brighter future. ediscovery-reviewmanaged-services, cloud-migration, cloud-services, blog, ediscovery-review,managed-services; cloud-migration; cloud-services; blogsarah moran

In case the complexities of corporate data weren’t creating enough turbulence to keep corporate and legal teams up at night, along comes a prolonged pandemic to really shake things up. Because now, a complex data landscape has also become a complex employee landscape.What has been dubbed the “great resignation” (approximately 38 million workers voluntarily quit their jobs in 2021) has left many companies shaken as they struggle to adapt their organizations to a reconfigured and remote workforce. With little time to plan for the risks and contingencies such a seismic shift would normally entail, companies are now playing catch-up, seeking ways to ensure proper data management, better responses to fast-moving litigation and internal investigations, and enhanced security as they grapple with offsite employees, transformative applications, and the impact of an exodus that may have caused company data to escape its bounds.These unique circumstances present a number of challenges for companies and their legal teams alike. In a webinar with Today’s General Counsel, I was pleased to join Scott McVeigh, industry principal from Onna, to discuss the ways in which many companies have been affected. We looked at the recent workplace disruption and considered the impact: What data risks have emerged or intensified? What efficiencies or advantages? What areas of the company data environment deserve renewed focus? What steps can internal teams take to help ensure that data concerns are addressed and legal imperatives met? A Shift to Remote Work Accelerates Transition to the CloudPrior to the pandemic, an estimated 20% of the U.S workforce was working remotely. By December, 2020, that number had increased to 71%. Even with offices now deemed safer as the pandemic wanes, it is anticipated that more than 51% of the U.S. workforce will continue to be remote or hybrid.The impact of this shift has already been profound, reshaping the use, format, and storage of data. As many as 81% of organizations say the pandemic accelerated their cloud timelines as they raced to engage with new tools and applications that flooded the market to accommodate the remote workforce. Online collaboration has now become the new normal, with document sharing apps, chat functionalities, and web conferencing becoming the dominant forces that underpin daily work. Enhanced Collaboration — A Mixed Blessing While this shift may have resulted in some efficiencies as more informal practices took hold, the explosion of collaborative data technologies has also created significant challenges, especially for data and records management, security, and legal teams. As a result, some important enterprise areas are ripe for renewed attention and innovation:Information governance models: The disrupted workforce has made information governance efforts more complicated—and more necessary. Remote collaboration and sharing applications mean more data in more places, making it harder for internal teams to create and maintain a cohesive vision of the data landscape to contain and control growing data volumes.Rapid data growth from both authorized and unauthorized tools and new forms of communication (think gifs, memes, and emojis) makes it easier for data to proliferate, morph, even disappear, which may call for modified or additional policies and procedures. From a data security standpoint, privacy breaches coupled with other security stressors are magnified as siloed data, a perennial problem, pressure-tests existing processes and policies.eDiscovery and preservation imperatives: In the implementation of cloud applications, preserving and collecting data in a defensible manner has not been a top priority. More tools enabling informal, dispersed, and fluid content challenge the paradigm of traditional collection and review. Where is a particular kind of data living and who controls it? Who is the custodian or author of content in shared collaborative spaces? With so many new data types, what is now the definition of a “document” or a conversation?Employee transitioning: As employees moved offsite or departed during the pandemic, company data may have gone with them — if not through malicious exfiltration, then just because HR and IT, with reduced teams as well, could not keep up with the onboarding and offboarding process. One top concern for organizations is that the lost data or IP could have gone to a competitor. Training requirements: With workers at a distance, training on company privacy, security, and preservation policies — which should be intensifying — may be taking a back seat to other business priorities impacted by the pandemic. Too, cultivating a data-sensitive culture is now more difficult with employees often untethered from the norms of company data access and storage and little to no face-to-face interaction with other employees and their own managers. Law Firms and Legal Departments Not Exempt from DisruptionTo complicate matters, as companies were transformed by the pandemic, so too were the law firms and legal departments that support them. Already in a state of flux, the legal market was highly impacted by both employee departures and the migration to remote work, relatively foreign to an entrenched in-office culture. Lack of attention to document management, often a law firm weakness, has just added fuel to the fire.The resignation-induced talent drain has likely affected workflows, adding to inefficiencies and duplicative work as corporate and legal knowledge, both in-house and outside, dissipated with the overall disruption of formerly routine processes and responsibilities. It has certainly impacted eDiscovery processes; legal professionals are still working to master the art of conducting discovery remotely from cloud-based data sources.Bucking the Trends: Take These Steps to Reduce RiskThe disrupted workplace calls for renewed diligence, nimbleness, and a certain amount of creativity on the part of internal teams responsible for data and its management. Most of all, it requires rigorous attention to potential risks exacerbated by a still-evolving landscape.Here are some important steps companies can take to reduce risk: Scrutinize what may now be a very different data landscape. As in pre-pandemic times, knowing where data resides and in what format is a big part of the battle. With new tools and cloud storage locations making everything even more complex, thinking through applications and the data they generate before they roll out can save time, effort, and grief down the line. Analyze: Who uses what applications? Where does the data go and how is it stored? Who has control over it? From an eDiscovery standpoint, with so much data in play, it pays to scale efforts to potential returns; focusing on the most-used data sources is more fruitful than “boiling the ocean.” Cultivate stakeholder partnerships. As the workforce transforms, partnerships among internal stakeholders, especially IT, compliance, data privacy, records management, and information security teams — in close coordination with business units — are more important than ever in controlling how and by whom data is created and used. Corporate silos only enhance risk, especially when workers are remote and unsanctioned applications may be proliferating. Remember, though, that data initiatives are most effective when they come from the top, especially if funding is required. Engage the C-suite as much as possible. Improve information governance capabilities. As data pools from multiple collaborative sources and cloud applications proliferate, making prior linear processes cumbersome and expensive, a shift in focus to the left side of the Electronic Discovery Reference Model (EDRM) makes even more sense now. With the right cloud-based tools and services, as well as good information governance models, teams can perform better upstream and reduce downstream costs.Foster a culture of data awareness and protection. Training, training, training — for both current and incoming employees — is critical. Sound policies mean nothing if employees are unaware of or don’t abide by them or don’t understand the nature of the risk they are meant to address. Educate employees on data “ownership” best practices. Encourage sound data hygiene and enhance onboarding and offboarding procedures to take data risks into account, especially those related to preservation imperatives. Remember that inbound data from new employees that works its way into the company can be just as problematic as data exfiltration. Review and, if necessary, update records management policies. Records management policies should be considered programmatically to align with the nature of the business. Reducing company exposure by updating policy gaps that may be caused by evolving privacy regulations (e.g., GDPR, CCPA/CPRA, etc.) should be a top priority for any company’s records and data management teams. Remember that training goes hand in hand with any policy changes.Engage experts where you need them. Data complexities of today, especially related to privacy and security, may require the expertise beyond that routinely found in-house. Be sure to work with providers and experts well-versed in today’s challenges.Leverage technology where possible, with expertise in mind. Various data automation tools can provide the power to import, manage, and modify records in ways never before possible. AI and categorization tools can be used to assess data in place, potentially mitigating the need for linear collection, processing, and review of data in discovery. Automated tools can enable a more managed examination of departing employee data. But technology not carefully deployed or without the right experts behind the scenes can diminish the potential benefits. Know what questions to ask. Be an informed and thoughtful user: implement wisely. If you are interested in this topic, feel free to reach out to me at dblack@lighthouseglobal.com. chat-and-collaboration-data; forensics; information-governanceemerging-data-sources, cloud-security, red-flag-reporting, departing-onboarding-employee, pii, blog, record-management, risk-management, chat-and-collaboration-data, forensics, information-governance,emerging-data-sources; cloud-security; red-flag-reporting; departing-onboarding-employee; pii; blog; record-management; risk-managementdaniel black

This year’s International Women’s Day theme revolves around “breaking the bias” and imagining a more gender-equal world. This topic seems particularly relevant for the legal and technology fields, which both have long histories of being male-dominated industries. In 1980, just 8% of attorneys were women, with that number growing to 37% percent by 2021. While the number of women in the technology field has actually declined over the last 40 years, from 37% in 1985, to 33% in 2022.But cold statistics, while helpful, don’t tell the full story. Numbers can be helpful to get a 10,000-foot view of how far we’ve come and how far we still need to go—but they can’t tell us how to get to that gender-equal world or what it’s like to live those statistics. For that, we need to listen to women in the legal and technology space.We need to understand the perseverance of the women who broke through the glass ceiling when they were one of a few in the profession. Like when Supreme Court Justice Ruth Bader Ginsburg explained how they had to install a women’s bathroom in the justices’ robing room after her appointment to the Supreme Court in 1993. We need to hear the stories of the women who broke barriers while dealing with the intersectionality of gender and racial bias. Like Loretta Lynch, the first African-American woman and second woman to be confirmed as United States Attorney General in 2015, recounting the story of a client who directed all of his questions to Lynch’s co-worker – a young male associate – who had nothing to do with what Lynch was presenting.And we need to listen to the women leading our industry today and paving the way for the next generation. In that vein, Lighthouse is honored to feature seven women who are innovators, champions of equity, and models of leadership in the legal technology field:Vanessa Quaciari, eDiscovery Counsel, Baker Botts L.L.P.Kim Foster, Discovery Services Manager, Lane PowellKelly Clay, Assistant General Counsel and Global eDiscovery Counsel, GSKJani Grantz, eDiscovery Manager, DaVitaMarilyn Caldwell, eDiscovery Director, SiemensMoira Errick, Litigation Support Manager, StripeMargaret Dolson, Global Head eDiscovery Services and Archiving Technology, Deutsche Bank USAWe had the honor of interviewing these women about their experiences in the legal technology field and asking them their thoughts on breaking down biases within the industry. Their perspectives and advice can serve as a helpful guide for all people who strive for equality.Recognize the achievements and contributions of women Recognizing the achievements of women is a simple but powerful tool in the fight to break down bias. When women’s achievements, contributions, and ideas are recognized within a firm or organization, it helps dismantle harmful stereotypes that women are not as present in the workplace, or that they don’t achieve as much as men.Talking other women up is so important. When you have a seat at the table and an opportunity to promote another talented woman – you should always do so. —Margaret DolsonFrom a cultural perspective, you have to be intentional and lead by example. Elevate female voices by echoing their comments and ideas while ensuring they receive full credit for their contributions. Seek out their counsel in front of others, and do it often, so that it becomes the norm within your culture. —Kim FosterHowever, for a variety of reasons, women may not feel comfortable recognizing their own achievements. They may also be more reticent to accept recognition or downplay their contributions. Many of the women we spoke to mentioned that accepting recognition was just as important as giving it, because recognition of one woman serves to amplify the voices of others.Women are far too often dismissive of their own achievements. We don't want to be seen as someone who brags or calls attention to ourselves. Frequently, we fall into the societal trappings of even going so far as to be dismissive of our own accomplishments – if we even make them publicly known. I strive to normalize being proud of ourselves, to share what we have achieved, and know that even if it may seem small to our own eyes, it's an accomplishment. I encourage a safe and supportive environment where everyone can feel free to share in their own way, through their own voice, or through the help of another. We all deserve recognition for what we do. —Moira ErrickI remind women that your achievements may seem like just doing your job, but they are so much more for each of us, and it is important to accept and recognize the appreciation. —Kelly ClayI’ve joined organizations to get my name, knowledge, and experience out there to show what women are capable of and be encouraging to women and other genders. —Jani GrantzTo help facilitate and encourage this recognition, it’s important for firms, organizations, departments, and teams to have a dedicated method for acknowledging achievements, wins, and contributions for all employees. This can be as simple as an email chain, or as formal as a dedicated system.My company as a whole strives for equality in all areas, be it gender, race, or any other identifying factor, and that allows my team the ability to recognize accomplishments from everyone including women. In my department, we do Friday emails where people get shout-outs for their contributions and wins, all inclusive of genders, as everyone’s achievements are important to the growth of the village. —Jani GrantzWe are proud to have extremely talented women throughout our firm and are constantly making sure we help raise their visibility. —Vanessa QuaciariWe celebrate achievements both formally and informally, including day-to-day support and recognition in broader team meetings, postings, and events. —Marilyn CaldwellWork to increase representation Both the legal and technology fields have been historically male-dominated. While the statistics are improving incrementally, there is still a way to go before there is equity in the legal technology industry.Many times in my career, I have been the only woman in the room, in the meeting, in the planning session. —Marilyn CaldwellGenerally speaking, both the legal and technology fields have up to now been male-dominated. Even in the eDiscovery niche, the technological knowhow is typically something that is provided by men. This likely is the result of the relatively low number of women historically graduating with science, technology, engineering, and mathematics (STEM)-related degrees. —Vanessa QuaciariHistorically, there has been a perception that women are not as technically inclined or analytical as men. This is simply not true, evidenced by the many exceptional women in eDiscovery at all levels. The legal and technology fields both suffer from stereotypes of having fewer women in them than many other fields. While more women have been entering law school and the legal field generally, there are fewer women at the higher levels of ownership (partners) and leadership. Women want equitable opportunities for growth and development, and they want to be considered for leadership roles. —Kim FosterOver the years I’ve seen men get bigger matters, better pay, and faster promotions because “historically men know more about technology” and they support their own first. —Jani GrantzThus, the importance of women representation in the industry cannot be understated. A more diverse team is stronger and more innovative. Representation also breaks down barriers and moves organizations toward gender equality.When there are more of us in the room, more women who have a seat at the table and have the ability to influence decision-making, it puts us in a better position to recognize the potential of other women and help move them forward. —Margaret DolsonMore women in leadership positions bring a more well-rounded, balanced, and holistic perspective to business. —Marilyn CaldwellThere are a variety of ways to increase representation of women, both on a small scale and across the entire industry. On a micro level, team members can ensure that there is diversity across projects, matters, and teams. Co-workers can prioritize diversity of thought when setting important meetings. Outside of work, people can strive to improve representation by getting involved in technology and legal education programs or join industry groups dedicated to diversity, equity, and inclusion in the field. On a macro level, organizations should develop systems to ensure their hiring, pay, and career development practices are driving diversity. Companies and firms can also support organizations that are dedicated to increasing diversity in technology and legal education.We get to increased representation in the industry by listening, by intentional discourse, and, most importantly, by supporting and identifying women with talent to fill these roles.—Marilyn CaldwellBreaking gender biases starts at home. I have two daughters and a son, and I try to instill in them all an interest in science and technology, rather than perpetuate the misguided notion that those fields are only appropriate for boys. —Vanessa QuaciariTake stock of your current compensation program (i.e., how are people paid, do we have consistent methodologies to establish pay ranges for a specific role, provide pay increases, etc.). Develop hiring and recruiting protocols that evaluate individuals based on observable skills, measurable outcomes, etc. In hiring, this may entail ensuring that recruiters use similar questions for each candidate, improve validity and reliability within the candidate selection process, and give weight to candidate attributes that actually count and ensure that scorers are consistent. —Kim FosterI personally have worked to change that gender stereotype by increasing my eDiscovery tech knowledge, learning the front and back end of relevant software, getting my RCA, and staying current with legal tech updates. —Jani GrantzBefore implementing these systems at the organizational level, however, decision-makers may need to be trained to understand their own implicit biases to ensure they are not unintentionally hampering diversity efforts. Educate your decision-makers about bias and implicit bias. Decision-makers could include, but are not limited to, your organization’s recruiting team, hiring managers, supervisors, those in leadership roles who hire individuals, including positions responsible for ongoing professional development. —Kim FosterOne of the things I’ve championed within our organization is unconscious bias training and exposure – because I think the awareness of that is what can really lead to change. Discussing unconscious bias and its effects is not about assigning blame. It’s about talking through the things that may cause us to be inherently biased against others, and even ourselves, within the workplace. And that discussion can lead us to shift those perceptions so that everyone feels comfortable expressing their thoughts and opinions. —Margaret DolsonBoldly be yourself… and then don’t be afraid to use your voice loudlyMany high-achieving women often speak about facing “imposter syndrome” – the feeling of doubting your own ability in a role while feeling like a fraud masquerading as a leader. This experience may be exacerbated for women in a male-dominated industry because other leaders and experts in the industry are predominantly men, and therefore, don’t look or sound like they do.One way to overcome this feeling is to recognize the implicit bias you may have around what an “expert” or “leader” looks or sounds like – and then working to stop trying to fit into that mold. In other words, strive to be your authentic self.Imposter syndrome is a very real issue because we may never fit into the template of what a “leader” has traditionally looked and sounded like within the legal and technology industries. So, we end up trying to fit into a mold of someone who is not remotely like us. But when we are able to be our authentic selves, and we know our subject matter – we can show up as competent, charismatic, and confident even when we don’t fit into a blueprint. However, it can take a lot of courage to do that. —Margaret DolsonOnce you are not afraid to use your own voice, you can then start using it loudly – not only to demonstrate your own expertise and knowledge, but also as a voice for others.Present yourself as you are, focusing on your skills and abilities rather than your appearance. Do not be afraid to put yourself “out there” for technical positions or projects, and never let anyone tell you that you are not capable. —Kim FosterContinue to stand up for gender equality and don’t back down whether you’re a woman who is being treated unfairly or someone who is witnessing acts of inequality toward women and other genders. Don’t be afraid to voice your opinion and bring notice to the bias. Even if it’s unintentional, it’s important that people see the affects bias has so that behaviors can be changed. —Jani GrantzDon’t let inertia get you. Speak up, advocate for yourself the way you would for others. Take up more space than you need and keep moving forward. —Kelly ClayThere are very brilliant women who are leading the charge both on the legal and the technological side as well as the judicial side. Day in and day out they are demonstrating through case law, articles, and innovative technology expansion that the traits we prize in the workforce are equal opportunity characteristics that any human can demonstrate passionately. —Moira ErrickLean in. Gather perspective. Be clear. Be diplomatic AND assertive. Be an example. Take a seat at the table. Be brave. Be candid. Listen to understand. —Marilyn CaldwellFind your tribeIt’s important to find your “tribe” – a group of people who support each other and can provide knowledgeable advice and an ear to listen when needed. When women have a support system and feel accepted as they are, they feel comfortable using their voice to advocate for themselves and for others. In this way, women can empower each other to break through barriers and bias.I strongly urge all women to find their tribe. Find a mentor, be a mentor. Be active in both your professional and personal communities in whatever way you can. We don't have to network through these organized functions to be supported. We can support one another on the sidelines of the soccer field, at 3 a.m. on a group text as we cram in one more rewrite of that summary, or at 8 a.m. as we take a moment to ourselves. Find your tribe who will give you the support and respect we all deserve. —Moira ErrickWithin the workplace, I recommend women align themselves with similarly-minded professionals, not only women in leadership positions, but people whose careers and knowledge are worth emulating and understanding. I think this helps break gender biases while creating goodwill with people with similar career paths. —Vanessa QuaciariRecognize the historic challenges women are facing today – and work to overcome thoseCovid-19 has had a dramatic effect on the workforce. But it has had a disproportionate effect on women. For instance, a 2021 policy brief from the International Labour Organization found that globally, women’s employment dropped by 4.2% between 2019 and 2020, compared with 3% for men. And a January 2021 report from the National Women’s Law Center showed that when the economy lost 140,000 net jobs in December of 2020, all of those losses fell on women (with women losing 156,000 jobs and men gaining 16,000). This disproportionate effect is because women are often the primary caregivers in family structures.Covid has impacted all of us profoundly. For caregivers in a family its impact is amplified. I don’t want to assume that all caregivers are women, but many are the primary caregivers and also have full time jobs. —Kelly ClayAs a mother, I am aware of how the pandemic has impacted not only women lawyers with children, but parents in general, who now have their usual load of professional responsibilities plus the added duties related to having their children at home all of the time. —Vanessa QuaciariI have seen many working women, especially those who also act as caregivers, facing a lot of added stress due to biased thinking. I have seen many women who have had to make life altering choices...family or career. Near and dear friends have had to step away from their roles because they are not afforded the trust by their employers to get their jobs done outside of the “correct” hours of the day. Covid has exacerbated that, but by the same token it has brought this issue to the forefront. It's not a problem that is unique to any one company, it is endemic in our nation. —Moira ErrickIndeed, while these hardships were felt most acutely during pandemic-related lockdowns, the pandemic simply highlighted and exacerbated inequities that already existed for women. Moving forward, this can be addressed by looking more holistically at the root cause and working to remedy from the ground up. In terms of how to curb the disproportionate impact of the pandemic as we move forward – we need to shift our focus to include men in this analysis. Rather than solely asking women what they need, we also need to ask men, “What do you need in order to be equal participants in running a household?” Because running a household is very similar to running a business and when we focus only on women, we are saying that it’s solely on a woman to keep that business running. The disproportionate burden on women can’t just be addressed by trying to accommodate women, we need to also bring men into the equation. —Margaret DolsonCorporations that support work life balance, in whatever terms the employee sets, are still unicorns. We have to recognize, as a nation, that the mindset that work can only be done in one location during set hours is simply not true in today's business world and given the disparate impact such restrictions have on women, it should not be tolerated anymore. We cannot close the door to half of the workforce because they are left with no other options due to inability to access childcare, lack of school, partners who also are beholden to unforgiving work schedules, and the many other hurdles that are out there. We need to recognize that work is work, whether it is done between 9 a.m. and 5 p.m. or 7 p.m. to 2 a.m. or any combination thereof, so long as it meets the overarching needs of the business. —Moira ErrickConclusionThe stories and advice of these women leaders can serve as a guide, helping to lead us to become a more gender-equal industry and world. Lighthouse is proud to amplify their voices.diversity-equity-and-inclusionblog, diversity-equity-and-inclusion,bloglighthouse

In 2021, corporations and law firms alike grappled with yet another year of disruption and unpredictability caused by economic volatility, a lingering global pandemic, increased regulation, and inequality within the workforce. To help our clients prepare for whatever 2022 may have in store, Lighthouse CEO Brian McManus welcomed economic forecaster and former CNBC chief economist and Squawk Box co-host Marci Rossell for a lively discussion centered around these current global macroeconomic trends, with a focus on their effect on the legal industry.Their conversation was wide-ranging and informative, touching on impacts, causes, and forecasts related to inflation, global workforce shortages, inequality in the workplace, technology adoption, and increased regulatory and data privacy restrictions. The key takeaways from this discussion are outlined below.Economic InflationAs of January 2022, the inflation rate was hovering around 7% in the United States (US), and around 5% in the European Union (EU). These are the highest inflation rates both countries have seen in decades. Rossell explained that one of the major contributing factors for this increase is the speed at which the overall economy recovered from the abrupt halt in economic activity in the spring of 2020 due to the COVID-19 pandemic. The sharp economic recovery drove a surge in demand for services and goods, at a time when supply around the world was at an all-time low due to pandemic-related shutdowns. This tension led to the current sustained inflation rates we’re seeing today, and those rates can be expected to remain high for the foreseeable future in markets where production is not expected to meet demand any time soon (such as the energy and oil industries).Within the legal industry, specifically, law firms and organizations have not only been impacted by the typical “cost of goods” inflation described above – they have also been impacted by inflation related to labor shortages and rising wages, as well as costs related to regulation and compliance. “The Great Resignation” and Its Impact on the Legal IndustryOver the last two years, droves of workers have switched employers, changed careers, or left the workforce all together, in what pundits and economists have deemed, “The Great Resignation.” Rossell explained that this global phenomenon may have roots in the financial crises of 2008 – 2009, when the economy contracted dramatically, leaving millennials struggling to enter a workforce plagued by an unemployment rate that had soared into the double digits. In the wake of this recession and for years afterward, the balance of power between employers and employees was weighted heavily in favor of employers, with overqualified workers applying to the same jobs, giving employers their pick of quality candidates. Now, this same generation of millennials have been confronted with a pandemic that has caused millions of people to suddenly sever their connections to jobs, employers, and/or geography. Many of these workers may not have felt very connected to where they worked or lived in the first place, but stayed because of their previous experience in a job market that was heavily influenced by the last recession. The pandemic suddenly forced this generation of workers into a situation that ultimately enabled them to make different career choices. And we are certainly seeing them making those choices. As Rossell noted, in addition to this trend among the millennial generation, the pandemic also escalated early retirements for an older generation, while an overall decrease in population growth has led to 400,000 fewer young people entering the labor force every year. These three factors are a perfect labor-shortage storm, with fewer experienced workers, fewer young people entering the labor market, and a generation of mid-career millennials reevaluating their careers and/or employers.McManus pointed out that labor shortage has also had a significant effect on the legal industry generally, and the eDiscovery industry specifically. eDiscovery is a niche industry, which makes it harder to find and retain experienced talent in general. But over the last twelve months, the tighter labor market has significantly exacerbated those issues. There is now a shortage of talent within eDiscovery and the cost of retaining valuable talent has sharply increased over the last nine months, with experienced employees being offered 20% to 40% more in compensation.This trend also affects the broader legal industry. Attrition of associates at law firms was at an unprecedented level in 2021 and the cost of retaining associates skyrocketed. For example, law firm associate compensation grew 11% in November of 2021, year over year, according to a state of the legal market report from the Thomson Reuters Institute. This trend can be expected to continue over the next few years due to the economic factors at play.To combat the worker shortage, McManus warned that employers should expect to not only offer higher compensation, but also include benefits like flexible work arrangements, in order to recruit and retain talented employees. Even prior to the pandemic, Rossell noted, studies showed that flexible work arrangement benefits were worth about 8% of a salary to younger employees. This trend is expected to sustain well into the future, as housing market trends indicate that 30-somethings are moving to larger homes away from large corporate offices and cities.Diversity, Equity, and Inclusion in the WorkforceThere has been a significant emphasis placed on diversity, equity, and inclusion (DE&I) over the past few years across many markets, including the legal industry. Rossell provided a historical perspective, explaining that thirty years ago the consensus from economists was that the labor market was rational and profit-maximizing and thus, discrimination in the labor force could not exist. The theory was that for-profit companies would always be incentivized to hire the best individual for the job, regardless of gender, race, ethnicity, sexual orientation, etc. But in 2004, a groundbreaking economic study on race in the labor market found that people with white-sounding names were 50% more likely to get a call back from an HR professional. This study was the beginning of a sea-change in economics, where organizations slowly realized the economic need for, and importance of, DE&I. In effect, organizations began to slowly understand that there was an economic cost to not hiring the best candidates, and that focusing on DE&I increases profitability, productivity, and growth.This sea-change is represented across the globe. European countries were initially on the forefront of this movement, as evidenced by the 2003 emphasis in Norway to have gender equity represented on corporate boards within the country. The US is now moving even further in that direction. Last year, Nasdaq proposed new board diversity rules and disclosure guidance, including that listed companies should have at least one board member who identifies as a woman, as well as one board member who self-identifies as an underrepresented minority or LGBTQ+.As McManus pointed out, this trend is also represented across the legal industry. There is a continued expectation for more diversity, equity, and inclusion within organizations, law firms, and legal technology supply vendors. Clients want to see diversity, equity, and inclusion represented in the teams they work with on a daily basis. Additionally, the next generation of talented employees is also demanding an equitable environment in which to work. Thus, legal and eDiscovery employers should expect that going forward, they will need to track, measure, and demonstrate an inclusive, equitable, and diverse environment in order to attract and retain the best workers.As Rossell pointed out: “(DE&I) matters to the next generation. As talent becomes scarcer and the balance of power shifts away from employers to employees, [the next generation of workers] is going to demand not only a flexible workforce but a diverse and inclusive environment to work in.”As DE&I programs advance, eDiscovery and legal teams will see how diverse hiring contributes to greater innovation and success.AI and Its Role in the Legal IndustryRossell also provided a historical view of technology innovation and its effect on worldwide economies. She noted that artificial Intelligence (AI) technology is the next step in a 200-year-old process that began with the industrial revolution – when advances in machine automation allowed simple machines to perform manufacturing related processes, enabling humans to migrate towards more service-related work. This has now evolved into machines that can now perform some of the work in the service sector, thanks to advancements in AI technology.McManus noted that within the legal industry, lawyers (who are trained to be risk-averse) have traditionally been much slower to adopt this emerging technology. However, the legal industry is also quickly becoming submerged in “big data,” and AI is one of the most effective tools to combat the labor shortages and increased costs that exacerbate the problems caused by massive data volumes. Nowhere is this more evident than in the document review process performed during eDiscovery.“The industry still follows a traditional approach [to document review] with large groups of lawyers reviewing massive volumes of text and that approach is just untenable,” McManus said.The impracticality of that traditional approach is not only due to the increased volume and complexity of data, but also due to labor shortages and increased labor costs. Advancements in AI give newer legal technology tools the capability to help automate and expedite the document review process. This should lead to AI adoption at a much faster pace than we’ve traditionally seen in the legal industry, McManus noted.The Global Regulatory Landscape, Anti-Trust Activity, and What to Look for in the Coming YearsRossell also provided an insightful overview of the dynamic and shifting regulatory landscape from an economist’s perspective. Increased governmental regulation is raising costs in almost every industry and is one of the driving forces behind higher inflation rates. In the United States, the increase in government regulation may be due to the fact that the government’s governing functions have been slowly shifting from the legislative branch to the executive branch. In turn, this shift means that every four years, companies may deal with a complete shift in the regulatory landscape depending on which political party wins the presidential office. These abrupt swings make compliance very costly and put pressure on smaller organizations. Often the only companies that can survive this type of volatility are those big enough to support a department solely dedicated to compliance. Thus, in some ways, increased government regulation is driving the consolidation of companies.At the same time, we are seeing a shift in antitrust policy from an economics perspective. Whereas previously, anti-competition policy was centered around whether consolidation would harm consumers, we’re now seeing a shift to assessing a broader range of harm. Prior to this shift, a merger would be blocked if it would cause higher prices for consumers (i.e., if the merger would cause consumers harm by giving them less choices and therefore raise consumer prices). Now, mergers are blocked for a much broader range of issues that are not just centered solely around consumers, but around society as a whole. For example, a merger might now be blocked if it would be harmful to the environment, to workers, would cause a decline in future competition, etc. This more aggressive governmental regulation worldwide is expected to continue in the coming years. In short, expect anti-competition scrutiny to continue to be broad and aggressive, regardless of changes in political parties and offices.The Future of the Global Data Privacy LandscapeFinally, McManus provided a helpful overview of recent changes to the data privacy landscape, and what to expect in the 2022. Another area where government regulation is expected to continue to increase globally is around data privacy rights and protections for consumers. The EU’s GDPR legislation in 2018 paved the way for data privacy rights, providing a template for governments on how to regulate and protect consumer data privacy. Within a few years, California followed suit, as did a plethora of other governments around the world. This trend is only expected to continue as we move into an increasingly digital world.In the US in 2021 alone, two more states passed comprehensive GDPR-like laws (Virigina and Colorado), while at least 25 other states introduced or had data privacy laws somewhere within the state legislative consideration process. And the US federal government also looks to be increasingly active in this area – with the U.S. House Energy and Commerce Committee voting to give the Federal Trade Commission $1 billion to set up a data privacy bureau. Even China passed a GDPR-like law in 2021, the Personal Information Protection Law, which included not only the risk of huge fines for non-compliance, but also the risk of companies being black-listed by the Chinese government.This focus on data privacy regulation will certainly increase costs for businesses in the coming years, as companies work to stay compliant with a patchwork of global and local data privacy laws and regulations.ediscovery-reviewccpa, gdpr, review, ai-big-data, blog, ediscovery-review,ccpa; gdpr; review; ai-big-data; bloglighthouse