Building legal risk metrics throughout the ordinary course of business provides added value for corporations of all types. It gives leadership better insight into the workplace culture so that harmful behavioral patterns can be exposed, bad conduct can be stopped before it becomes a serious legal problem, and companies can forecast legal spend well before litigation. When weighing whether they should leave well enough alone or seek out underlying problems, these common questions arise: Does this type of analysis expose us to litigation that never would have happened — costing time, money, and manpower? What if patterns of sexual harassment are uncovered, but no one has actually brought a claim? By identifying heightened risk, you may have an obligation to do something about it before it becomes a real legal liability.
Nevertheless, new technologies and approaches to data are driving a shift toward risk assessment. As technology advances and risk assessments become more mainstream and affordable, it will likely become standard practice to rely on risk metrics derived from electronically stored information (ESI). Due to the abundance of unstructured data swirling around within company databases, e-discovery methods are becoming more sophisticated and changing how companies find key information.
The risk used to be, what penalties would we face if we deleted or couldn’t locate data we actually needed? Now the risk becomes, what underlying issues can we uncover from our own data? As more and more companies embrace this shift, the courts will, too.