Migrated from eDJGroupInc.com. Author: Mikki Tomlinson. Published: 2012-01-03 08:58:49Format, images and links may no longer function correctly. The impact of discovery in this era of electronic information explosion has greatly affected corporations that are full-time litigants. These effects go all the way to the core of their businesses in terms of cost, risk, and management of information. The resulting position for organizations has become reactive, and discovery costs have spiraled out of control.
Over the last several years there has been a good deal of discussion on the value of bringing eDiscovery processes in-house – often referred to as “litigation readiness.” The goal of developing an in-house eDiscovery program is to manage it as a business process, thus gaining efficiency and cost control.
In my years in this industry I have seen corporations all across the board – from those with a fully implemented legal hold and discovery response team, to those with no processes or procedures whatsoever, and everything in between. When given the opportunity, the question I pose to litigants on this topic is: “Why did you decide to implement a litigation readiness plan?” or “Why haven’t you implemented a litigation readiness plan?” To the former, I usually get a look that says “Duh” followed by a response along the lines of “…to manage eDiscovery as a business process in order to gain efficiency and cost control.” Since that one is settled, in this blog I will address the responses I receive to the latter question.
Many say they do not have the budget. I don’t buy it. If developing an in-house discovery response plan reduces costs, how can you not have a budget? Who doesn’t want to reduce costs? Based on my experience, the truth behind this response falls in line with the other responses I commonly hear, which are: “I don’t know where to start,” “I don’t know how to measure the ROI,” “I am having difficulty getting buy-in,” etc.
I find those who are in the position to worry about these issues are overwhelmed and simply do not know where to start. To top it off, their days are filled with reactive activities, which take away from the time and energy available to devote to proactive measures. If that is you, don’t worry! There is plenty of help out there (including free resources). Here are some observations to keep in mind and tips to help you get the ball rolling:
Every organization is unique. There are multiple factors to take into consideration in developing a litigation readiness plan. Among them are: (1) litigation profile, (2) corporate culture, and (3) risk tolerance.
You don’t have to do it all. An in-house eDiscovery program does not necessarily mean that everything is done in-house. Rather, it means that
there is a standard set of processes and workflows that are followed for eDiscovery related activities –which may be handled in-house, by outside counsel, by service providers, and/or all of the above. The approach you choose to take should be in-line with your litigation profile, organizational culture and goals (see directly above).
Start with a process, and then let technology follow. First, establish your requirements. Follow that with developing processes and workflows that work for your organization (remember – every organization is unique), then place or build technology around them. Important note: It is critical that audit capabilities are integrated into the processes and technologies you implement. The ability to measure is another key capability (as the saying goes, “You can’t manage what you don’t measure”).
Click for an example of a legal hold notice requirements overview:
Tap external resources. There are a plethora of external resources in the eDiscovery arena to tap, including legal counsel, consultants, professional organizations, news/blogs, and educational programs. A word of caution: vet experience and credentials before relying on any resource (e.g., verify consultant independence; research blogger motivations and incentives).
Implementation is evolutionary, not revolutionary. While the idea behind developing business processes is to create repeatable functions
(revolution), the course of developing and implementing them is a series of advancements – each one building upon the previous (evolution). Further, in our ever-changing world of technology and as case law continues to develop, established procedures will need to be tweaked and new ones developed.
The best place to start varies from organization to organization. Based on my experience, determining your starting point boils down to two questions: what are your biggest pain points/areas of risk, and where is the low hanging fruit? Once you tackle these questions, you can begin to scope your priorities and formulate your path to establishing in-house processes and procedures.