eDiscovery is complicated and very expensive. Or so the outside law firms, eDiscovery technology vendors, eDiscovery service providers and eDiscovery consultants have led us to believe.
Having spent most of career developing and marketing Information Technology (IT) solutions for the Global 2000, I just don’t buy into the myth that it (eDiscovery) has to be complicated or as expensive as it has been portrayed.
Management of Electronically Stored Information (ESI) within the Global 2000 has been going on successfully for many years outside of eDiscovery and many of the technologies, workflows and best practices that have been developed by IT professionals can and should be applied to the practice of eDiscovery and Governance, Risk and Compliance (GRC) for that matter.
There is not doubt that eDiscovery poses an extra layer of legal requirements that aren’t present in the general business environment. And then there is always that little issue of maybe having to provide testimony and get cross examined in court about what you did and how you did it (no more secrets). However, that doesn’t mean that we can’t utilize what we have learned in regards to workflow and best practices outside of eDiscovery over the past ten (10) years and apply them to the practice of eDiscovery today.
Historically, eDiscovery has been completed by a variety of unrelated processes both inside and outside the enterprise (depending upon the wishes of outside counsel and the political prowess of the CIO in question). Further, these processes have exchanged Electronically Stored Information (ESI) via the present day equivalent of “sneaker net”.
However, sophisticated workflow platforms are now available that can easily integrate these currently disparate processes into one integrated process that will save time and money.
Over the next couple of weeks, I plan to report on some of these platforms and provide some recommendations on which ones work, which one’s don’t, how much they cost and what the return on investment (ROI) should be.
As such, I would encourage any vendors that have products that fit into this category to contact me with overview of their platforms and their marketing message.
To provide some foundation of understand of what eDiscovery workflow is all about, Simon Taylor, the Senior Director, Information Access Management for CommVault, wrote an excellent article titled, “Managing IT Workflow For E-Discovery,” that appeared on the Computer Technology Review site on May 12, 2010.
The full text of Mr. Taylor’s article is as follows:
Electronic discovery (eDiscovery) has become a front-and-center IT concern as increasing numbers of companies struggle to respond effectively and efficiently to legal actions. Earlier this year, a landmark court opinion issued by U.S. District Court Judge Shira Scheindlin significantly upped the ante for organizational responsibility to preserve data by imposing monetary penalties on 13 plaintiffs for negligence and gross negligence in failing to protect discoverable data.
This ruling, which outlines new contemporary standards for eDiscovery, has been characterized as a “wake-up call” to litigants. The decision also raises the bar for IT involvement in preserving electronically stored information (ESI), which has become incredibly complex due to the sheer volume of records that needs to be managed. Discoverable data has also at the same time grown to include emails, files, documents, backup and archive data, often across multiple sites and media and some times geographies. New social media formats, such as Facebook and Twitter, also now are considered part of ESI.
Evolving case law and growing regulatory pressures now force organizations to gain greater control of their data, fueling new investments in eDiscovery technologies. According to Gartner Group, spending on electronic discovery software and services will grow between 25 and 35 percent annually through 2012. Despite this uptake, many organizations are still grappling with budget constraints and therefore must focus on finding ways to improve eDiscovery readiness in response in increasing litigations without incurring huge IT and legal costs.
IT managers and system integrators can play pivotal roles in helping companies lower litigation costs, duration and risk by driving eDiscovery efficiencies and effectiveness through:
- Streamlining information management,
- Consolidating eDiscovery processes, and
- Expediting stakeholder decision making.
Improving Information Management Efficiency
Too often, organizations learn the hard way that finding relevant data in response to litigation and legal discovery actions is neither quick nor easy but always costly. The ability to identify, locate, collect and, more importantly, preserve all discoverable data, regardless of where it resides, is considered one of the biggest and costliest obstacles in eDiscovery.
One of the reasons is the existence of information in various forms and formats, including financial reports, personnel files, customer records, emails, research results, etc. Also, corporate stakeholders often are unsure where and how their information is stored, protected and accessed. The result: some organizations operate reactively, which can lead to lots of manual effort, wasteful repetition and repeated requests for additional discoveries. Others outsource the entire process or reach early settlements to avoid it altogether.
To complicate matters, organizations have tended to defer decisions on compliance and records retention in favor of saving everything. This strategy makes it exceedingly difficult to isolate relevant information and draw relationships between different pieces of data in order to extract real business value. The process of constantly saving and protecting copious amounts of data leads to inordinate duplication and increased risk through a general lack of control across compliance, governance and eDiscovery objectives.
IT managers and systems integrators can drive information management efficiencies by facilitating the development of a consistent, repeatable and automated strategy for identifying and reducing the data required for legal review. Robust information management solutions have evolved to help IT control data from creation to deletion. Ideally, technologies that employ a singular information management approach provide the greatest visibility of and easiest access to corporate data residing on file servers, storage systems, laptops and desktops. Deduplication technology is an effective addition as it can reduce up to 90 percent of backup and archive data stored on disk and tape while decreasing the amount of data that needs to be searched in response to an ESI discovery request.
The ability to simplify information management is a great first step toward enabling proactive, end-to-end eDiscovery. The next step consolidates multiple eDiscovery workflow phases to achieve further economies of scale and productivity improvements.
Consolidating eDiscovery Workflow Processes
The most well-established guidelines and standards for eDiscovery consumers and providers are encompassed in the Electronic Discovery Reference Model (EDRM), which is designed to reduce the cost, time and manual effort associated with eDiscovery. The model, first developed in 2005, has been refined with continuous input and practical experience from more than 100 eDiscovery experts. Together, they identified nine essential steps, including:
- Information Management,
- Production, and
Within each step, there are many unique elements and actions that can impact the resolution of a particular matter. For that reason, it’s crucial for companies to navigate these steps carefully while looking for every opportunity to collapse discrete processes. Fortunately, technology has evolved to where many of the eDiscovery workflow steps can be performed simultaneously.
The ability to retain all forms of data in a virtualized repository, for example, enables companies to leverage sophisticated yet easy-to-use search, index and content classification capabilities that can be used together for highly effective data mining. Additionally, intelligent search and data classification technologies make it possible to assemble most of the pieces of the eDiscovery workflow puzzle in-house, including legal hold, legal hold tracking, file collection, file processing and legal review.
Consolidated data identification, preservation, collection and processing can dramatically accelerate the document review process while providing a head start in determining early case assessments. Reducing the number of discrete processes also decreases the amount of stakeholders who need to be involved in eDiscovery, which can lead to faster, more effective decision making.
Expediting Stakeholder Decision Making
Traditionally, each eDiscovery workflow phase was associated with a separate set of project stakeholders, comprising IT, paralegal teams, internal counsel, human resources, compliance and various end-user representatives as well as external attorneys and outsourced eDiscovery providers. When eDiscovery involves manual effort, more people are required, which can strain corporate resources and cause a proliferation of redundant data.
Companies with sound proactive information management strategies and technologies are well positioned to expedite repetitive eDiscovery decisions with a small yet dedicated core group of stakeholders. In contrast, organizations with inadequate information management typically require more internal and external stakeholders, with obvious challenges in communication leading to time consuming, repetitive and laborious activities.
Looking ahead, it’s clear that the IT team can prove invaluable in helping companies meet eDiscovery challenges by leveraging highly efficient information management technologies and best practices. Ultimately, companies that continually seek solutions to elevate productivity and operational efficiencies while containing costs will improve their legal and risk position and, as a result, gain greater credibility in court.