Why you need a solid and defensible methodology when you bring eDiscovery in-house

By Johannes Scholtes posted 09-02-2010 07:51

The main rewards of bringing eDiscovery in-house are very clear: reducing costs and controlling risks—for the current legal matter as well as future litigation. 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 is likely to double as well. 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. 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 (, 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. This involves repurposing, transferring and destroying information according to proper retention schedules and filing plans (a.k.a. data maps). Implementing proper information governance and reducing your overall information overload helps to reduce your future eDiscovery exposure. Penalties, fines and the cost of redoing the work can force you into an unfavorable settlement! Responding to requests for electronic information can be perplexing. First, identifying responsive information from huge stores of data can be time consuming, disruptive, and costly. Second, extracting data from computers in ways that reliably preserve evidence is not a simple undertaking, as data can easily be altered either intentionally or accidentally. Recognizing these facts, litigators and investigators in both civil and criminal matters have begun to focus carefully on electronic discovery and the role of computer forensics -- the science of reliably recovering and handling electronic storage media and the data contained therein so as to provide the appropriate foundations for admissible evidence. Bringing eDiscovery in-house is a profitable and worthwhile initiative, but one which requires careful implementation, quality control, auditing and a clear understand of how your eDiscovery technology works. If you bring eDiscovery in-house yet you handle it improperly, your ultimate costs can be significantly more than what you would have paid to outsource the work. Penalties, fines, the cost of redoing the work, new strict deadlines for new productions, and bad PR can cost you a lot. Every day there is more case law on parties that are sanctioned for data spoliation and scrutiny of process, rules and methodology is increasing. As a result, it is increasingly important to 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!). This is why you need a well documented and proven methodology, including embedded quality control, auditing and a fully documented chain of custody. With such a methodology, you can scale, you can easily roll out new projects, train new employees, and include new subsidiaries. In fact, you can make eDiscovery part of a daily operating procedure. You can predict timelines better (because you know the details of what you need to do) and you have a better probability to make the deadlines. You will need more than just software when you bring eDiscovery in-house: Apart from software licensing that comes in the form of perpetual non-volume based enterprise licenses, volume-based, or time limited hosted (SaaS) and in-house project licenses, one typically also considers professional services, maintenance, support and perhaps some consultancy for the solution. What is critical, however, is that you have access to methodologies from your vendor to properly implement the solution, perform complex tasks and processes as part of eDiscovery, and prove that your actions are defensible, auditable, recorded and repeatable. Look for proven methodologies that have been developed in close cooperation with intelligence, law enforcement, law firms and forensic accounting organizations and other mission critical projects. And also look for vendors that can refer to case law, because that will help you tremendously in your case if any party challenges the technology you used. As George Socha warned in his white paper on bringing eDiscovery in-house ( ): 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!

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