The skyrocketing cost of eDiscovery has made headlines recently with several court cases setting precedents in favor of supporting huge eDiscovery costs. For example, a January circuit court decision required the Office of Federal Housing Enterprise Oversight to spend $6 million (totaling 9 percent of its annual budget) to comply with a subpoena for electronic documents; and another recent district court ruling enforces preservation and production of metadata.
These rulings make taking control of eDiscovery costs more important than ever, and with many eDiscovery options available, corporate counsel and law firms are realizing that they can significantly reduce costs by bringing eDiscovery in-house.
But going in-house with eDiscovery cannot be over-complicated by having to fit technologies together that were never intended for the task of eDiscovery. Many “eDiscovery” solutions that vendors are selling include hard to manage and unnecessary processes, such as archiving, that are the result of vendors pushing legal features onto technology platforms that are inappropriate for what is needed. This adds unacceptable and unnecessary costs, weaker eDiscovery processes and a hard to manage infrastructure.
Changing the eDiscovery Paradigm
eDiscovery is an end-to-end process starting from the point of identifying all information across an enterprise to processing it, extending legal hold, analyzing and reviewing it for pertinence to case matters. eDiscovery solutions address business, legal and IT requirements for meeting legal discovery and forensic investigation challenges.
Within corporations eDiscovery users could be wide and broad–ranging from legal and paralegal teams, General Counsel’s office, to security and IT administrator teams. In the past, corporations have typically outsourced the eDiscovery process to legal service providers and law firms.
But, recently, there has been a significant change in that eDiscovery paradigm – most corporations are bringing eDiscovery in-house to reduce the costs of eDiscovery, to gain more control of their eDiscovery process, and to implement and manage Legal Hold defensibly.
The Benefits of Bringing eDiscovery In-House
Another important reason for corporations to bring eDiscovery in-house is for Early Case Assessments in order to make the best possible business decision early in the litigation process – to litigate or not. In many instances, the costs of settlement are less than the costs of eDiscovery using the traditional approach of offloading and sending data to legal service providers.
By bringing eDiscovery in-house, corporations and business users will have complete, accurate, relevant and timely information up-front. And when required, a small relevant subset of the data can be created by analyzing, reviewing and culling down the data to be sent to legal service providers for further detailed or advanced review.
In order to enable corporations with in-house eDiscovery, software needs to be built ground-up to handle different problems, requirements and characteristics while substantially lowering costs in order to produce a clear ROI.
Re-purposing existing products such as archiving products to address eDiscovery challenges is not an optimal approach and obviously will not solve enterprise-wide eDiscovery challenges.
eDiscovery vs. Archival
Understanding that archival and eDiscovery serve different purposes, can help enterprises reduce the cost of eDiscovery. Archiving and eDiscovery should co-exist but archival and the search capabilities that come along with it should not be mistaken to serve end-to-end eDiscovery purposes.
Figure 1: eDiscovery and Archival are two different components of the enterprise stack
Pure-play eDiscovery software products and solutions are meant to address the challenges of proactive information management and reactive eDiscovery. eDiscovery challenges and requirements from customers are about discovery, collection, legal hold, preservation, processing, analysis and review that need to be performed for any litigation matter or offer these functionalities proactively across data that is considered to be prone to litigation.
Archives or email archives are one Electronically Stored Information (ESI) data source but there could be data in laptops/desktops, live Exchange servers, data/emails that need to be restored from backup systems/tapes that may or not be in the archives (because they could be purged from archive per policy), file systems, ECMs, HR systems etc. eDiscovery software can be offered on top of archives to make sure archived data is fully discoverable and support eDiscovery requirements.
eDiscovery for enterprise deployments is a much larger and more complex problem than archiving. For example, consider a typical enterprise consisting of many data centers, remote and branch offices and distributed end users with desktops/laptops etc. It is not practical to archive data at all enterprise locations and for all enterprise data – the cost of doing that is very expensive as one needs to buy more storage and more servers.
However, it is very much a reality to have eDiscovery for a legal matter to discover, collect, analyze, review and legally hold data from remote offices, branch offices or end user distributed laptops. eDiscovery software products and solutions are focused on addressing enterprise-wide challenges.
By adopting a pure eDiscovery solution that is easy to deploy, corporate counsel and law firms as well as large enterprises can protect themselves against litigation without breaking the bank.