Bringing eDiscovery in-house is the way to go, but beware of the risks!

By Johannes Scholtes posted 06-03-2010 08:26

  
Bringing eDiscovery in-house is the way to go. At least, that is what recent surveys and analyst reports confirm. Reports from Gartner, IDC, The 451 Group, the eDiscoveryJournal (http://ediscoveryjournal.com/), Enterprise Strategy Group, and many other sources all point in the same direction: bringing eDiscovery in-house is a priority for many organizations. In February 2009, I lead a LegalTech New York educational track titled, “Bringing eDiscovery In-House”. During the event, we debuted a white paper (by the same name) that was a joint effort with George Socha, the founder of EDRM. Both the white paper and the educational track addressed the obvious rewards as well as the hidden risks of bringing eDiscovery in-house. In 2009, we seemed to be among few pioneers of the movement to bring electronic discovery in-house. But the concept has gained significant momentum in the past 18 months. In February 2010, we updated the white paper and lead another LegalTech New York track on the topic. By this time, however, many companies had jumped on board with the concept. The visionary white paper from George Socha can still be downloaded here: http://www.zylab.com/lp/ediscovery_inhouse.aspx. The following is a summary of the innovative ideas it introduced. The main rewards of bringing eDiscovery in-house are very clear: saving cost and controlling risks. What we have seen in many cases is that the bill one can expect to receive for the legal review from an external law firm is often proportional with the amount of documents that are handed over in an eDiscovery process. This means that if you give outside counsel double the number of documents, your bill will probably also double! So, the more irrelevant documents you can justifiably filter out, the lower your external legal bill will be. This is mainly what organizations try to achieve when they bring eDiscovery in house. This objective can also be achieved by automatically sorting and classifying documents in groups of potentially privileged, confidential, hot, responsive and non-responsive document sets. Part of the legal review can then be done with in-house or off-shore, low-cost contract attorneys. Also, your outside counsel can deploy its resources in a more efficient way by having specialized lawyers look only at relevant documents and not at all kinds of irrelevant or easily-classified documents. A second objective is to be able to implement a quick and cost effective early case assessment before all documents are reviewed. This is essential to obtain a favorable settlement or to determine what the real issue is, where the legal risks are, and how liable one really is. By having all relevant documents searchable with a powerful exploratory search engine (http://zylab.wordpress.com/category/enterprise-search/), this goal can be achieved rather simply. A third objective can be found in developing and implementing a method to reduce the overall information overload in an organization by implementing and enforcing proper records- and information management principles. Repurpose, transfer and destroy information according to proper retention schedules and filing plans (a.k.a. data maps). Implementing proper information governance andby reducing your overall information overload you also reduce your future eDiscovery exposure. So in summary: 1. Save cost and legal risks by giving your outside counsel less irrelevant data. 2. Perform a more thorough and more efficient early case assessment. 3. Reduce overall information overload and thus future eDiscovery exposure by implementing and enforcing information governance and records management practices. But as George Socha warned in his 2009 white paper: be aware of faith-based eDiscovery because that is not going to work! If you bring eDiscovery in-house and you do it wrong, then your cost can be significantly more than what you would have paid by outsourcing everything in the first place! Penalties, fines, the cost of redoing the work, new strict deadlines for new productions, and bad PR can seriously harm you. Every day there is more case law on parties that are sanctioned for data spoliation. It is critical that you carefully follow the rules that are in place. Leverage audits reports and implement quality control mechanisms. Know what you do with information and know exactly how your tools work. Also, your counsel must be able to defend your processes in court against objections from opposing counsel (and your external counsel is not always the most technical person!). More on the essentials of, for instance, search in an in-house eDiscovery process and on existing case law can be found here: http://www.zylab.com/default.aspx?Doc=wp/WP72 - The Difference Between Legal Search and Web Search.pdf. So, it is clear, bringing eDiscovery in-house is a profitable and worthwhile exercise, but be carefull of the risks and make sure to use a proper proven methodology and implement quality control, auditing and understand how your technology works!

#LitigationReadiness #InformationGovernance #earlycaseassessment #e-discovery #in-houseediscovery #Records-Management #ediscoverysoftware #ElectronicRecordsManagement
1 comment
39 views

Comments

09-17-2012 08:45

The Information Governance Reference Model (IGRM) depicts a framework for unified information governance by an organization’s leadership and key stakeholders. Costs and risks are implicit, accounted for in the IGRM.
How the Information Governance Reference Model (IGRM) Complements ARMA International’s Generally Accepted Recordkeeping Principles (GARP®)
Also related to this topic, this ABA article describes how an organization’s team of in-house attorneys, lead outside counsel, RIM, and IT professionals can be instrumental in guiding discussions with business management to achieve better eDiscovery by implementing a unified Information Governance (IG) program.
Better E-Discovery: Unified Governance and the IGRM
American Bar Association, Section of Litigation, Technology for the Litigator, June 11, 2012
Authors: Marcus Ledergerber, Matthew Knouff
Fundamentally, information governance is a business process. In order to lower risks and achieve greater efficiencies through process improvement, electronic discovery will increasingly become tightly integrated with an organization’s information governance policy, procedures, and infrastructure.