Maintain Control During E-Discovery
Comprehensive Information Access is the Engine of Discovery

How many organizations can honestly say they have the proper records management infrastructure and retention policies in place to meet the requirements for any effective e-discovery solution? Perhaps surprisingly, statistics have indicated that only around 1% of organizations are actually prepared for full-scale e-discovery activities. As a result, if the time should come when an organization gets sued, that organization will likely jump into rapid reaction mode, immediately running to hire external bureaus or legal teams to help meet its discovery obligations. At that precise moment, not only does the (money) meter start running at an accelerated pace, but normal business processes get disturbed, management and employees get distracted and normal cash flow is compromised. If not done correctly, discovery activities can also cause delays in court proceedings, which trigger even more organizational stress, chaos and re-allocation of resources.

This situation no longer has to be the norm, though. Solutions now exist that empower organizations to prepare for e-discovery activities without having to relinquish full control to external parties. But when discussing these types of e-discovery solutions, the focus must be on solutions that are driven by information access technology (with strong records management and advanced search components). In fact, our company research indicates that the new Federal Rules of Civil Procedure (FRCP) will ignite the information access market in much the same way that compliance initiatives (such as Sarbanes-Oxley) supercharged the enterprise content management market.

Consider the following:

• In general, storing 1GB of electronic information costs about $1. But if an external legal firm reviews this information, and a junior attorney works the case (billing at around $200 per hour), costs can easily exceed $30,000 for that 1GB of analysis...and most organizations have hundreds of GBs of info on hand;
• Inconsistencies and variations in quality are likely to occur when legal review teams manually review large data collections;
• People cannot find everything. In the classic study by Blair and Maron, for example, highly qualified lawyers and paralegals thought they had found 75% of the relevant case documents in a specific case; the reality was that they only found 20%;
• Up to 60% of documents are exact (or near-exact) duplicates. Duplicates jam disclosure pipelines, delaying deadlines. Systems that identify duplicates can be slow and expensive; and
• Legally defensible audit logs must be in place for collections, preservation and processing activities. An organizational framework must exist to ensure that audit logs are complete, which means including search date and time, searched devices and directories, search criteria, hashing (to prove data integrity) and an overview of performed security actions, such as locking down file servers. If one of these steps is missing or incomplete, a court case can be compromised.

All told, discovery for many companies is high cost without assurances of high levels of accuracy and efficiency. The root of the problems discussed here—and the main reason pre-trial costs go through the roof—is that most organizations have no overriding concept or supporting structure in place to define and manage the relevant information that could be vital to their defense during litigation proceedings. When information gathering and preliminary analysis start from ground zero, organizations are more prone to try to settle the case out of court, before the discovery phase. Even though it can feel like extortion, organizations often prefer to just swallow their pride and pay the high cost of a settlement because it is still perceived to end up costing less than the estimated costs and hassle of discovery and legal reviews.

Defusing the Risk in E-Discovery Obligations
Are problems associated with e-discovery really this prevalent? You better believe it! With the advent of so many new regulatory mandates, it’s hard to find an organization that will not be (potentially) impacted by e-discovery activities.

Discovery guidelines are in place around the globe, the most influential being the Federal Rules of Civil Procedure (FRCP) in the US and Part 31 of the Civil Procedure Rules (CPR) in the UK. Although other regional discovery regulations (such as those of the EU) can differ greatly in scope from the US and UK models, regional regulations are often overridden by the fact that any organization doing business, either directly or indirectly, with companies based in the US or UK must adhere to the respective US or UK disclosure standards. Many European, Asian or Latin American companies are unaware of the far-reaching implications of the US and UK standards...that is, until these companies get subpoenaed by US or UK lawyers.

The ultimate solution for addressing e-discovery requirements is to implement a fully operational records management system and ensure that proper processes are in place to support it. To develop good records management, consider the following evaluatory process:

1.  Conduct a thorough and honest evaluation of your organization’s purpose and processes and how data supports these;
2.  Identify departments, analyze their related document sets (also email) and identify the owners of these document sets;
3.  Determine retention policies (internal external, compliance-oriented);
4.  Evaluate steps 1-3, and create a filing plan that accommodates all of the relevant considerations; and
5.  File all information according to the filing plan.

An important component of records management is to make sure that older record collections can be recognized and organized, and the records that are no longer needed, or required by law to be retained, must be destroyed. These older documents can cause the most problems during litigation, and if they are not accounted for, any other discovery activities that occur, whether by your organization or a third party, can be rendered ineffective.