Early identification of confidential information as Big Data collides with privacy

The very name “Big Data” clearly implies that very much more information is being collected about us, and that has obvious implications both for privacy (where both individuals and law impose restrictions on what might be kept and used) and for eDiscovery, whose nature implies the need to collect as much information as possible.

Much of the Big Data which threatens our privacy is collected by governments, over whom we have no practical supervision, and much lies with big corporations (and is pooled between them) in ways and for purposes which we can only guess at. If one leaves on one side (because it is intractible, not because it is right) the organisations for whom the collection of such data is the business, what about the companies of all sizes whose collection of personal information is a by-product of other business operations, and who first realise what problem this gives them when a discovery / disclosure obligation confronts them with the problems raised by the possession of such data?  In reactive terms, lawyers need the ability to identify confidential information, to weed it out where possible and to redact it as necessary.

An article by Sheila Mackay of Xerox Litigation Services called “Apps” and Big Data and Privacy – An Oxymoron? focuses on an earlier stage – the implementation of an information governance programme designed to identify private information as it is created, to audit the processes used for managing it, and to develop a litigation readiness plan which includes protocols to manage confidential data.

The latter approach inevitably requires investment in the people and processes needed to track private data. This happens also to be consistent with the rules, the EU Data Protection Directive for example, which requires that personal data is used only for the purpose for which it was collected and is kept for no longer than is necessary for that purpose. Much eDiscovery expense could be saved if companies followed procedures which minimised the amount of data being captured in the first place.

Sheila Mackay’s article refers to one by Gabriela Baron, also of Xerox Litigation Services on the American Banker website. That is called How to Manage Confidential Information in the Era of Big Data and expands on the points raised in Sheila Mackay’s article with particular reference to the financial services industry.

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