With new technologies frequently surfacing during an eDiscovery review, it is time for legal departments to take a deeper dive into blockchain so they can be prepared for what is to come. Legal professionals are aware of what blockchain is and may even use this technology for some business functions like smart contracts or payment for services via cryptocurrency. However, blockchain is still evolving and there are many unknowns about how this technology operates and what role it will play in both the legal industry and general business.
Blockchain – The Basics
Blockchain is a complex type of distributed ledger technology that the legal industry is still learning about. A few important distinguishing features include:
Users can record transactions over a distributed network that is very secure. Identities of the individuals involved in a transaction are not disclosed.
The network can be either public or private.
The transactions are permanent. The blockchain also creates a recorded transaction history that users can access, but never alter.
Third-party facilitators are unnecessary.
An established protocol instructs computers on the network about when a transaction is verified and should be added to the ledger. This is commonly referred to as mining and is the only way a transaction can become a permanent part of the blockchain.
All of these features make blockchain appealing to individuals wanting to carry out secure transactions where asset ownership is permanently recorded without the need for a bank. It will only continue to gain popularity and continue to branch out to other areas besides virtual currency. Especially if smart contracts gain more acceptance, legal departments will start to see increasing exposure to blockchain technology with their corporate clients.
Predicted eDiscovery Implications
Just as with any emerging data source, litigators need to be ready for collection and review hurdles that blockchain could impose. As more businesses utilize blockchain, it will pop up as discoverable electronically stored information (ESI) in cases and investigations. In order to prepare for this, legal departments should anticipate potential challenges, develop new protocols, and keep informed on new blockchain developments. Being able to advise corporate clients about what to be mindful of when deploying or encountering blockchain technology and accounting for this in information governance plans will limit eDiscovery issues in the future. The first step is to anticipate what will be easy and what will be challenging when dealing with blockchain as a source of ESI during litigation. Blockchain data contains several features that are attractive to litigators. The fact that the transactions are permanent and do not allow for editing ensures that a party cannot tamper with any relevant blockchain ESI which can limit the time spent on eDiscovery disputes (like spoliation) and aids with data authentication. However, the fact that blockchain transactions conceal identities makes it difficult to prove that a party or other person relevant to the case participated in a certain transaction. Legal departments should account for extra costs and time to track down proper custodians, establish identities, and decode blockchain transactions. Utilizing experts and AI-powered solutions may help accelerate this process and yield efficient results. These resources could provide methods to strip anonymity from transactions that are relevant to litigation. Additionally, when collecting blockchain data, lawyers need to prepare for any obstacles or unique methods they may need to deploy. Whether the data is easily exportable will highly affect collection practices. From what we know about blockchain, this may be an easier task than anticipated. The fact that the transactions take place over a secure network should make collection an easier feat than some unstructured data like chat messages or various dark data sources. Still, it is important to talk about blockchain collection with a legal department’s eDiscovery vendor to understand the process and plan eDiscovery workflows.
Information Governance Considerations
Even though the data contained in a blockchain transaction is reliable, there will definitely be more steps and new considerations – especially as the technology matures. As such, when a party needs to authenticate blockchain data as evidence for a case, they should expect to utilize additional resources and encounter evidentiary roadblocks. To avoid expending unnecessary resources, it is important to weigh the cost benefit of using this data as trial evidence. Organizations should account for these costs and concerns in their litigation readiness plans. To be proactive, legal departments should start talking about blockchain and resulting information governance considerations with their corporate clients. Taking this approach aligns with the current trend of taking a more business-centered approach with legal transformation efforts and ways to be more efficient. Besides accounting for blockchain in litigation readiness plans, organizations should have policies around using blockchain for internal and external business purposes. Updating data classification and mapping protocols will also help better manage these transactions if they become discoverable ESI in a future case. Other helpful actions include monitoring new blockchain developments, providing training opportunities to staff, and seeing how courts handle future blockchain eDiscovery issues. It is important to remember that how this technology influences litigation will change as legal departments discover best practices for eDiscovery workflows pertaining to blockchain. This is why it is crucial to keep track of any case law and court rulings on blockchain and eDiscovery to help refine practices. Just as lawyers have recently seen the courts respond to eDiscovery obstacles and arguments pertaining to AI usage, blockchain questions will undoubtedly follow.
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This article does not constitute legal advice.
The opinions expressed in the column above represent the author’s own.
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