The 1% Solution
Why Your Business is Not Prepared for E-Discovery

“The forward-looking corporations are preparing ahead of time... just in case,” says Bryant Bell, senior director of marketing at CT Summation. And he says that this is not necessarily a new condition. “Many of these are companies that have a long history of risk and information preservation... just not for e-discovery purposes. Back then, it was done to protect intellectual property. These same forward-looking companies have IT groups that think about minimizing the types of systems they need to maintain and reducing storage costs. The IT guys say: There’s this new buzzword out there, but we’ve done it all before you called it ‘e-discovery’; this is just our policy.

”But they’re not the majority; upon THAT everyone agrees. “The majority are companies that, through acquisition or growth or by starting out entrepreneurial and maturing into a larger corporation, have many disparate systems, have no clear policies and haven’t thought about risk. They were risky companies from the start! And now they realize they need to find three years’ worth of information on two dozen systems and realize they’ve created a pile of spaghetti,” says Bryant.

So they’re risk-friendly; I got that. But are they going without protection? Not really, says our group, but it’s also not without a cost. “The records management system is the largest unfunded liability on a company’s balance sheet,” states Don Swanson, president of Five Star Legal. For most companies, he says, “It all comes down to a value proposition... are you willing to take the risk, or are the additional benefits that come from good information management more valuable than the risk of NOT doing it?”

“It does boil down to a balance between risk management and cost governance,” adds Bassam Zarkout. “For example, ‘fire safety’ started with the reactive deployment of fire extinguishers. But it evolved into a proactive mode through the embedding of ‘fire safety’ controls and systems within the infrastructure. Organizations will probably continue to use reactive measures for their discovery needs, but gradually they will start building discovery—and other governance—controls into their systems and operation.”

Who Does What?
“There is a misunderstanding that early case assessment happens once,” adds Annie Goranson. “When in fact, you should conduct an early case assessment before any litigation has even occurred, then as you learn more, you should revisit the review. The more information you have prior to a ‘meet and confer’ can have a profound impact on how you go about your discovery.”

Last bit of housekeeping: The revisions to the FRCP rules included the requirement that opposing counsel sit down, in a room or in a “collaboration environment” of some kind, to agree ahead of time on what are the pertinent collections of information that need to be revealed, where this data resides and in which way should it be located. In fact, in a typical meet and confer, as they’re called, you even sometimes negotiate the “search strings” that you’re expected to use. They negotiate the “Boolean terms,” I kid you not, and these search strings can be PAGES long.

These across-the-Missouri-River meetings of legal teams, IT professionals and line-of-business information custodians have, I assure you, created some lively banter. Oh, to be a fly on the wall!

“Cooperation is the new buzzword in the electronic discovery world,” says Don Swanson. “And it’s the emergence of ESI in litigation that has caused opposing counsels to work together like never before, and earlier than ever before.”

Also, the requirement to cooperate is on a fast clock... fewer than 100 days.

“That’s a short period of time,” adds Bryant Bell, “considering you walk away from a meet and confer with your hair on fire, and you’re wondering not only where am I going to find all that information? But how am I going to share it with the opposing counsel? In three months???”

Each of the experts in my interview this month agreed on one thing: It takes a village. “When it comes to e-discovery, there’s the science, and then there’s the art,” is how Bryant puts it. “The science part is in the IT manager’s hands. The policies, the rigor... making sure things can be preserved and collected easily if necessary. And the ‘art part’ is where the legal professional does the reviews and assessments. You need both.”

“The key is to think big but start small and smart,” says Bassam. “The starting point is the establishment of a corporate information governance program and the development and deployment of IT-friendly information governance policies that incorporate retention and disposition, data privacy, discovery and other types of controls. As this is being implemented, organizations will to continue to react to discovery requests in a tactical manner.”

Bassam continues: “The problem is much greater than just documents. Companies are now thinking hard before they spend a lot of money on solutions. Consider this: a Fortune 100 and above company has multiple terabytes of information. If half of that is unstructured content, that could still be 500 terabytes. Considering that the content index is about 50% of the content, that’s an additional 250 terabytes! That starts to touch the size of Google and Yahoo. The cost of that is enormous! It boils down,” he says, “to risk mitigation versus cost.”

Not surprisingly, each of these experts has his and her own solution. It’s not my place to endorse one or the other. Plus, it wouldn’t make sense, since every organization is different, has its legacies to address and its challenges to confront. But one thing I have learned in this particular set of conversations is that the center of gravity in organizations has hit a wobbly patch lately. What used to be the domain of the IT department is now under scrutiny by the legal department. The content that “belongs” to business managers is now under retention disposition policies imposed by IT. The records management professionals are evolving into new roles in some cases, disappearing in other cases, making longer term information management and policy enforcement an open field for... somebody.

It’s a crazy train, but somebody’s gotta be the engineer. In the following pages you’ll be able to drill down into the issues I’ve tried to address, and many, many more. The best takeaway I can provide is: Information management is everyone’s business. So get to it.