Migrated from eDJGroupInc.com. Author: Greg Buckles. Published: 2011-05-12 12:44:36Format, images and links may no longer function correctly.  For the first time in many years I am missing the EDRM Kickoff Meeting in St. Paul. Kevin Esposito is covering the project updates, goals and progress for us, but it still feels strange to not be anchoring a project meeting, even if I will continue to co-lead the new Testing project. Instead, I delivered the keynote to the 2011 LiveOffice user conference this morning. LiveOffice is the leading cloud email archiving company (Gartner 2010) and has had pretty incredible growth throughout the recent economic downturn. They asked me to speak to the attendees about the impact of eDiscovery on IT in 2011. This meshed well with their roll out of their new version of Discovery Archive that expands their search and review features to enable inside/outside counsel to investigate and review in place. In polling the attendees, every single one had carried out discovery requests within the last year. Fifty percent were executing requests for Legal, while the rest allowed Legal to execute their own searches. Only a small portion were actively reviewing matters on the live data, but I could see the heads nodding as we discussed the prospect, it is definitely on the horizon for many of them. To organize my thoughts, I wrote a condensed speech (below) covering the primary points that I wanted to hit. The reality is that I can never resist opportunities to answer questions and transform a monologue into a dialogue.

One of the best questions asked for my recommendations for getting a new IT worker up to speed on eDiscovery. Beyond the usual background reading from The Sedona Conference and EDRM.net, my main advice included having the discovery team sit down with the new IT worker to walk through a “day in the life” of a typical matter. Nothing replaces experience and organized education, but a new administrator or IT personnel needs to quickly understand the overall matter lifecycle, quality requirements and overall context under which requests occur.  So below is my draft speech to this IT centric audience.

Setting the stage

Over 20 years ago, I was a police CSI using DOS utilities to extract files from 64 MB hard drives. Now I help attorneys craft searches across literally petabytes of email and files. Discovery has transitioned from warehouses filled with boxes of paper to cloud data centers in less than 10 years. This rapid transformation has left most corporate counsel and IT struggling to catch up with the right people, process and technology to meet the challenge. The stakes are high in civil litigation. Failing to meet deadlines or inadvertent spoliation can result in public sanctions, stock price loss and even loss of the case. Luckily for you, eDiscovery requirements are now driving the latest generation of information governance, archiving and lifecycle management offerings. Cloud based products are limiting or removing the infrastructure and maintenance hurdles.

I want to make sure that we are all on the same page when I talk about discovery, so I hope any attorneys or litigation support folks can bear with a thirty second overview. Discovery preservation and collection happens any time your counsel judges that civil litigation, regulatory investigations or criminal investigations are probable. The first action is to properly identify the relevant players and scope of relevant information for notice and preservation. This is usually very broad and is meant to reduce the risk of potential evidence being lost or altered. Down the road a bit, there will be a more specific discovery request, criminal subpeona or regulatory notice that must be collected, reviewed for privilege and then produced. This used to involve hundreds of boxes of paper records and now focuses on thousands or millions of emails and files.  The Federal Rules of Civil Procedure were amended in 2006 to recognize Electronically Stored Information (ESI) as evidence and provide new requirements to negotiate the scope of requests, preserve metadata and tighten the discovery timeline to expedite cases.

eDiscovery workflow and rough costs – 2006 vs. 2011

So let’s talk a bit about the actual steps and costs involved when discovery is a reactive fire drill versus a proactive business process. IT has historically handled a legal request by restoring back up tapes, exporting complete custodian PSTs which must then be processed to deduplicate and index for search. I commonly see 2-400+% duplication within these exports. If we take a typical small case with 20 custodians over 3 years of tape, you could be facing $250k in just processing fees, much less the time and effort to get the PSTs.

If you have migrated your ESI into an on-premise or cloud based content archiving platform, you can immediately search in place, only export negotiated search hits. Typically, these comprise less than 15% of you custodial email and are already deduplicated. Our 20 custodians, 3 year case now drops to $24k, saving 90% or more on IT’s side of the bill. All of this can vary wildly depending on the players, scope and other factors, but this explains why corporate legal and IT are moving to proactively consolidate and manage all corporate information assets.

Growing frequency, sophistication and volume of requests

So let’s talk about recent trends that may impact you. The easiest way to control the sheer size and resulting cost of discovery is to narrowly define the relevant scope as early as possible. This is called Early Data Assessment and involves searches and investigations on your live data before anything is collected or processed. Counsel are increasingly pushing for this, but many do not actually have the technical savvy, defined processes or resources to effectively use these new tools as yet. IT may be asked to create or execute these early searches. Good communication and familiarity with discovery best practices are essential to head off downstream complications around chain of custody, metadata and exact search criteria.

Opposing party requests are becoming increasingly savvy. Plaintiff attorneys watch high profile cases and latch onto questions about social media, new technologies like social network analysis and metadata integrity. Your corporate IT policies are your first line of defense against these tactics. A good corporate data map and consolidation of data sources will simplify responses and cut short arguments over where potential ESI lives.

Corporate communications are the top target of discovery requests. Unfortunately, they are also growing at over 40% in volume every year. New social network platforms such as IM, Facebook, Sharepoint, Salesforce.com and more have complicated the number and formats of potential communication sources.

Don’t get bogged down in cutting edge technologies. The legal system and attorneys have proven resistant to black box software that cannot easily be explained to an adversarial party. New concept search, categorization, analytics and other technologies can be leveraged for cost savings by a sophisticated discovery team, but they come with a certain cost and risk that requires careful consideration. Boolean search is still the dominant, accepted discovery mechanism for email retrieval. So consider investing in solid search personnel and processes to maximize your savings.

Moving upstream

So I am calling for you to move upstream to manage your information lifecycle and data proliferation before the downstream costs impact your bottom line. If you can transform your discovery process from the reactive fire drill into a standardized business process, you will give your corporate legal users the power to comply with discovery demands. Good business practices consolidate data rather than propagating multiple copies. Examine your current discovery lifecycle with this in mind. You may be shocked at how many copies and versions of email are actually created by discovery itself. The ideal solution is to conduct discovery on the single copy where it lives and only export the relevant email for production.

The idea is to enable legal and outside counsel to have direct live access. Legal should practice law, IT should support the infrastructure and systems. Discovery is a fact of life for US and global corporations of all sizes. It should be factored into corporate policy, practices and technology initiatives without getting in the way of the fundamental business requirements. Discovery is a cost of business, but it generally operates under a reasonableness standard rather than absolute requirements. This means that your counsel have the ability to make risk versus cost decisions in light of your typical litigation and regulatory demands.

0 0 votes
Article Rating