Hide or Seek: How to Play the E-Discovery Game

"It's easy to forget that the need for e-discovery and the understanding of proper use in corporations is still fairly new," says Andrew. Additionally, many companies, as Phil points out, "have still yet to see the negative effects that not being prepared can have. For a lot of organizations, the time and cost investment of preparation may also be a deterrent, and it's easier to just outsource the incidents as they appear. This will change, as the technology matures and it becomes easier for organizations to implement robust e-discovery capabilities within their own walls."

It's not a purely technology question. "The cost of e-discovery is like any other technology based on a licensing model—the more users you have, the more expensive it's going to be," says Phil. "The reverse is true also; the fewer people you have, the less you'll pay for it. A mom-and-pop business doesn't need the most sophisticated litigation-hold technology. If something were to happen, they'd probably go to an outside counsel, and they should! But you can communicate the whole instruction (what needs to be held, what needs to be readied for review) orally... you don't need to have a great deal of technology. The courts look at the circumstances—several cases from 2010 and 2011 have confirmed that. It doesn't cost money to map out the process... it just takes time."

Do It or Have It Done?

This subject of "process" versus "technology" regularly comes up in these white paper articles. In fact, I'd say this is the basic business conflict, regardless of the subject. So I ask Andrew: To what degree have the roles within the organization-legal, IT, line-of-business, executive suite-shifted in terms of their impact on e-discovery, and their relative importance as far as their influence over e-discovery efforts?

"The role of litigation support seems to be changing. A number of our users have told us that they've seen changes in their job descriptions and titles due to this shift. Those who were formerly ‘litigation support managers' have become ‘e-discovery specialists and consultants.' They've had to learn a brand-new skill—and figure out how to use it properly. Their roles have altered accordingly," answers Andrew.

"Since we build a product that is leveraged later in the process—for review and production-customers who are interested in our product are fairly far along in their thinking about what e-discovery capabilities they'd like to bring in house," explains Andrew. "For them, it's all about understanding how we make review more efficient. To understand those efficiencies, many customers need to see what e-discovery technology is truly capable of before realizing that it is worth the cost. Every tool works differently, has a unique interface and focuses on a different set of core features. Once those features are communicated to the potential customer, it really becomes an issue of whether or not these are the features that the particular customer would most value. If they do value the tool, cost isn't much of an issue, as cost savings are generally evident. Considering that review is the most costly phase of e-discovery—the "forgotten 90%," some have said-we've seen a number of customers who understand the cost savings from the get-go," he says.

Having gone down this road more than a few times, I ask the question that seems to resonate the strongest: Is litigation preparedness similar to an insurance policy? Do companies feel that paying into such an investment can be throwing money at a non-problem? "That depends on the industry," says Phil. "If you're in financial services or healthcare, you are almost certainly going to run into litigation, more than once. If you never needed to be prepared, that would be the rare exception, not the norm. In fact, in my article, I talk about one company for which there were 919 million reasons that they should have gotten their e-discovery together. That's $919 million in a verdict. That doesn't even count the costs of producing discovery material, legal costs, etc. There was international intrigue, cloak-and-dagger, surveillance, everything... but the lawsuit came down in large part to e-discovery. The hold notices involved in the case simply weren't administered correctly—one was too late, one wasn't broad enough, another wasn't in the correct language. As a result, there was evidence destruction, and the court had to tell the jury that the defendant had destroyed evidence, and they could so infer. And they ‘inferred' to the tune of $919 million. When a jury hears from a judge that one of the parties destroyed evidence, that looks bad. Really bad.

So, how do you get their heads out of the sand, or elsewhere? "We try to show the potential return on investment," says Phil. "Maybe it's not as strong a message to the mom-and-pop or medium-sized business, but for larger companies there's a lot of benefit in just organizing data beforehand. Being able to have your data in one place, analyze it and get to it, and draw on trends. It's all part of the information management package... there are CRM benefits, BI benefits and at the same time, you can be ready for litigation. So we talk about the many benefits," Phil says.

Andrew adds, "You need to first have a policy, then educate your employees on the policy, and then use technology to help govern that policy. Without teaching employees how to best enact information governance, it would be a challenge to impose any process on them. Let's face it: there is no single technology that manages all aspects of an information governance policy. Today, there are still many scenarios where the individual employees will need to act diligently to ensure that compliance is met."

So, where are we? Let's sum up: You aren't required to apply fancy technology to your e-discovery preparedness plans, but you can be penalized if you don't. You should train employees to behave properly, but you should also automate their actions so they're unaware of the governance taking place under the covers. There are strict federal rules, but they may change. Or may not. Your IT department should take care of e-discovery, but not without the legal department being in charge.

Confused? You should be. I am, too. But that's the beauty of having experts write KMWorld White Paper articles such as the ones you're about to read. Stay tuned for more in future. Despite my dread at the top of  this article, there is STILL plenty of fresh material in this subject to go around.