The inFusion12 conference next week has me thinking about the differences between the platform and point product approaches to in house corporate eDiscovery. Preparing slides and panelist questions for my sessions brought one challenge of the traditional eDiscovery relay race into focus for me. The obvious performance and strategic advantages to a centralized corporate platform include early, direct access to ESI in the wild, single instance collection storage, shared indexes, cross matter designations and universal chain of custody. Recouping these advantages usually requires a significant investment in the classic maturity triad; people, process and technology. ILTA booth displays clearly demonstrated that providers are investing in workflow and collaboration features in the attempt to be the primary eDiscovery interface for their customers. So what pain point are customers feeling? The ubiquitous EDRM diagram answered that question for me. Created in 2005, this model gave the nascent eDiscovery market a common vocabulary and lifecycle explanation when most counsel were still printing email and office documents for hard copy review. I missed that first year’s project, but gladly contributed to the expanding body of projects as the scope and scale of eDiscovery challenges exploded. The connectors between EDRM phases clearly demonstrate the traditional eDiscovery ‘telephone game’ where ESI was collected, processed and transferred between distinct teams. We all know the danger of passing a simple message around the camp fire; now imagine how that natural distortion is amplified through transformation of formats, load files and verbal instructions. So are you still playing this game?
The eDJ Group consulting team has seen the symptoms of this reactive, siloed process across many corporate verticals, sizes and litigation profiles. IT or corporate securities are carrying out collections. Overworked paralegals throw those collections to vendors with the best price or track record. The providers apply their secret sauce of deduplication, filtering and custodial reorganization. Outside counsel may search, sample or apply further filters before loading to a firm review platform or their favorite hosted system. Yet another provider may do the first pass review with contract reviewers. Somewhere in this process, the majority of native collections are converted in part or entirely into Tiff and text. By the time that the final production is made to the requesting party, it may have been transferred between people or parties six or more times. Does this sound familiar? Is it any wonder that defense of discovery process is a rising concern? A good plaintiff expert who digs hard enough into this kind of process can probably find some kind of inadvertent alteration or omission of ESI content or context to challenge evidence over.
So how do you minimize the distortion of the telephone game and gain confidence in your process? That is exactly what is driving technology providers to add centralized workflow and collaboration features to their offerings. Assess your current discovery response practices and identify these potential transfer gaps. Evaluate every hand off and try to track them from a centralized system that will support traditional quality control steps such as item counts/volume, chain of custody logging, hash signatures and more. The key is a standardized, documented process conducted by trained personnel. This is nothing new to mature business procedures, but eDiscovery is just starting to be tackled as a business process as opposed to a legal fire drill.