How Law Firms Can Proactively Reduce eDiscovery Risk & Cost

By Sarah Gayda posted 05-20-2021 12:14

  

Author: Tim Brady, CEO, Colligo

eDiscovery is a massive challenge for businesses today. As fines and non-compliance penalties continue to increase, eDiscovery should be a top agenda item for almost every organization. However,
proactive eDiscovery and other legal compliance activities should not be partitioned off and exist in a silo, but rather as part of a well-functioning business strategy across legal and IT, enabling better teamwork and collaboration.  

What is eDiscovery? 

eDiscovery, sometimes referred to as electronic discovery or document discovery, is the process of discovery in litigation that is carried out in electronic formats; eDiscovery encompasses what most often is referred to as electronically stored information (ESI). Emails, messages, documents, accounting records and databases, CAD files, websites, and many other pieces of content could be relevant as part of electronic discovery.  

Source: https://www.justice.gc.ca/eng/rp-pr/cp-pm/aud-ver/2018/edis/p1.html

Why is it a problem? 

eDiscovery is expensive. Costs primarily occur at the review and processing stage of the cycle. According to AIIM, 30-70% of the eDiscovery budget is spent in the ‘review’ stage sorting out responsive documents to produce and documents to withhold. However, the costs are even greater for non-compliance. Risk of file or content destruction after a litigation hold has been called is substantial.  

Many organizations are still dependent on on-premise file shares, and this creates a big problem in the case of eDiscovery. Further, many organizations do not have a proper company-wide taxonomy or classification system needed to help in the case of eDiscovery. A modern ECM system with supporting third-party applications for governance and proactive compliance provides significant help in combatting these problems before they transpire.  

One example of this is through a newer, but lesser used, approach in content management called federation. Rather than creating new copies, federated document management links to the content from the ‘source’ repository, consolidating information and centralizing control. Federation helps reduce eDiscovery costs through content consolidation. To power better results, Colligo recommends utilizing metadata to search from a single view across multiple, disparate repositories that federation provides.  

eDiscovery needs to be precise and cannot be left to chance. As such, without metadata tagged to your records, you cannot guarantee that you’ve found all the pertinent files. While many knowledge workers and professionals falsely believe they can use a keyword to search for content, this does not hold up in an organization with hundreds of thousands (if not millions) of documents and folders, and particularly not during eDiscovery. eDiscovery will continue to become more important for businesses as information proliferates inside the enterprise and should be considered while implementing or levelling up an information governance strategy.  

Satisfaction with legal eDiscovery is low 

Legal discovery is a phenomenon that affects most organizations, whether in the form of litigation or mergers and acquisitions diligence, so it is critical to be prepared. As shown in the chart below, eDiscovery is among the areas with the highest impact on firms. According to the Business of Law Blog, the majority of Fortune 1000 corporations now spend in the ballpark of $5 million to $10 million annually on eDiscovery. Keep in mind, requirements for eDiscovery often vary by industry. This is likely to be exacerbated by the pandemic. “The pandemic will have the greatest impact on e-discovery as it accelerates the explosion of communications in chat and collaboration tools without slowing the growth of email and other data … Cloud-based bespoke solutions will be required to analyze this data at a reasonable cost to the client.”  

Source: Houlihan Lokey, Legal Technology Market Update, Fall 2020

What is the best approach to avoid costly penalties? 

Proactive management of records and information is an important part of addressing eDiscovery. For 41% of in-house counsel, the most important part of managing eDiscovery in ligation is to manage their information before the eDiscovery need arises 

It starts at the top

Organizations must: have policies for properly disposing of information without business value (destruction and disposition policies); properly store, retain, and manage high-value documents under the organizations’ jurisdiction; and implement a classification scheme to provide information and records management structure. 

However, organizations also need buy in and compliance from workers across the organization. Often, technology provides the best way to do this. 

How can firms leverage cloud technologies for eDiscovery? 

Legal software has long been deployed and delivered behind the firm’s firewall; however, many firms are now making the shift to a cloud-based document management system, not only to better deal with remote work and modernizing their IT environments, but also to provide better content access and collaboration. Connecting to the firm’s data sources, wherever they live within the business, has become a competitive advantage, especially as data security/privacy of SaaS-based solutions has come so far in the last decade. Further, having a unified or central legal and compliance software system can drastically increase productivity and effectiveness in discovery by synchronizing information assets across the company compared to disparate or stand-alone legal software solutions that only specialize in a small piece of the eDiscovery reference model.  

While eDiscovery is often conducted after the fact, organizations need to empower workers to properly tag and file information and content on an ongoing basis, for future discovery purposes. Proper classification, based on metadata upon ingestion, or as emails are captured into a system like SharePoint, can play a big role in this. Correctly tagging and filing content can reduce the large costs associated with eDiscovery. If you’re involved in litigation, “you will be asked to retrieve information within a stringent legal time period,” or face fines and even prosecution, according to a Business2Community article. 

When companies properly tag and label their content, eDiscovery and search are much easier and records management programs, including retention strategies, are strengthened. 

Metadata to the rescue 

As much as being able to access content from anywhere is crucial, perhaps even more important in proactive management is having an application that allows for workers to capture content into the right location and apply the appropriate metadata tags (for better discovery) and the correct retention tags (for proper lifecycle management, retention, and disposition).  

Metadata is a crucial component of eDiscovery, as the “metadata associated with an electronic document can be just as important as the data in that document because it establishes the context in which the electronic content was created. The courts and regulators expect that the metadata associated with ESI will be kept intact,” commented John Mancini, former President of AIIM. According to KMWorld“Preserving the original content and metadata for electronically stored information is required in order to eliminate claims of spoliation or tampering with evidence later in the litigation.” This makes the assignment of accurate and usable metadata important, beyond the inherent search benefits. Rich metadata support, federated Outlook/SharePoint search capabilities, and offline access make it easy to provide up-to-date information, driving collaboration and productivity for your firm, and providing protection during eDiscovery initiatives. 

Managing case documents requires better Microsoft 365 integration

In addition to email management, corporate counsel and attorneys are seeking document management that lets them work rapidly in Word, PowerPoint, and Excel and then save files right from Office into SharePoint. They also want to apply metadata to files for quick eDiscovery, plus pull off basic records management, assigning retention periods for documents and classifying documents by type such as a contract. Essentially, legal teams want better integration of Office 365 with SharePoint for managing case documents. Colligo’s Email Manager, Document Manager, and Content Manager are part of a comprehensive product suite that allow organizations to better follow policies and to efficiently search during discovery, ultimately helping to lower the risk and costs of non-compliance. Pulling records and emails from the large amounts of content spanning the enterprise is not an easy task; using applications that proactively enable proper classification can drastically reduce costs and time-consuming efforts.  

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