The Need for Pro-active eDiscovery

By Johannes Scholtes posted 10-10-2011 03:52


Managing and controlling electronically stored information (ESI) is a matter of technology, but also of strict procedures, quality control and well-documented information management activities. ESI has become one of the most serious sources of legal exposure and risk.

Technology is essential and the technology options abound: advanced culling; processing and (forensic)  full-text indexing; concept and fuzzy search; automatic pre-classification of documents into privileged, claim-related and non-related documents; intelligent redaction; machine translation; pattern recognition; relevance ranking; exact and near de-duplication; email trail visualizations; and many other smart and innovative solutions.

However, organizations need more than just software. They should rely on professional services from specialists and—just as importantly— best-practice methodologies, including quality control, reporting and auditing that will help organizations bring e-discovery, records management, risk control and compliance in-house in a defensible manner.

Bringing E-Discovery In-house

There are several key questions an organization must consider in today’s business climate. Is your organization prepared to respond to an e-discovery demand imposed by regulators, civil parties or a competitor? Is your organization able to find and produce all relevant documents? If so, at what price and how fast?

Only about 1% of organizations are reportedly prepared for full-scale e-discovery activities. As a result, the vast majority of organizations facing litigation are forced into a costly reaction mode in order to respond to discovery requests within court-imposed timelines.

So, when the clock is ticking and the meter is running, how do you sift through internal databases, networks, computer systems, servers, archives, backup or recovery systems, laptops, PDAs, mobile phones and pagers to assess your legal risk and defend your organization? And further, how can you possibly meet the rigorous demands of the impending e-discovery while also preparing your organization for litigation that may be looming?

Take Control of Your Information Now

In most cases, the review of information for relevance and privilege and the processing of vast volumes of data in preparation for formal legal review are the most expensive elements of e-discovery—accounting for as much as 50%-80% of the budget when using external sources. Therefore, more and more organizations have acquired advanced tools to help them to control the costs and risks of the e-discovery process. Most notably, organizations have started to deploy information management software and systems to help them respond to a specific legal matter now and prepare for future litigation.

Litigation Response and Readiness are Moving Targets

While the latest e-discovery and information management technologies have made great progress toward putting organizations in control of their information assets and liabilities, the environment is dynamic and requires solutions that can scale and adapt to new realities:

  • Even after 50 years, Moore’s Law still applies: Every 18 months, the volume of our stored data doubles. At that rate, the amount of information stored by an organization will have grown 100 times over in 10 years.
  • The legal industry is one of the most conservative industries out there. Adoption of new technology is not a revolutionary process, but an evolutionary one which leads to higher costs from prolonged inefficiency.
  • The use of new social media such as Twitter and Facebook and non-searchable multimedia platforms like YouTube is growing exponentially;.
  • With the introduction of cloud computing, information is everywhere and nowhere at the same time.
  • The number of law suits will only increase in the coming years due to the credit crisis, but also due to the increasingly litigious nature of our society.
  • Therefore, the only real solution to solve the e-discovery burden now and in the future is to start properly managing all of your enterprise information as part of daily operations. Figure 2 shows the relation between e-discovery and information management.

Proactive eDiscovery: from litigation responds to litigation readiness

While in-house e-discovery systems are generally implemented to investigate a specific legal matter, more and more organizations are looking for a solid and robust foundation from which to pursue proactive, enterprise wide objectives for information management.

In fact, the costly and disruptive nature of e-discovery often triggers a broader information management initiative championed by executive leadership.

Proper information management initiatives may be based upon principles similar to e-discovery (i.e., identification, collection, review, etc.), but it often requires additional technology, procedures and user training to help organizations achieve corporate governance despite the continued— and rapid—growth of their data populations.

Information management involves not only archiving, but also the implementation and enforcement of retention and disposition schedules to ensure organizations are not storing vast volumes of information unnecessarily. It is actually quite similar to the culling process during e-discovery, yet in a broader form that is widely adopted as part of daily operations in all departments.

Email, SharePoint, HRM files, project files, customer files, official company records and legal contracts all contain potential future legal liability and cost considerations.  For example, retaining 100,000 emails—which may have important files attached—in one’s inbox, sent folder or hard disk exposes the organization to more risk and unnecessary storage costs. And the vast information stored on backup tapes and in MS SharePoint collections in a completely unstructured format presents its own potential risks, especially if the data is related to projects or litigation involving human resources or C-level management. Organizations will always have these types of unstructured data sets, but their potential risk can be managed by the right information management technology and protocol.

Information collections such as the ones noted above need to be ordered and classified in a filing plan, which can be done in a rather straightforward and pragmatic way. This action limits the amounts of data (and thus the potential cost of litigation), makes early case assessment possible on your live data, and limits the need for the expensive processes to collect and preserve all data in advance.

In the end, one will become litigation ready by making litigation response as unobtrusive as any other daily operating procedure.

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