E-Discovery Process, Policy More Important Than Tools

By Sharon Fisher (@slfisher) Aug 1, 2011

With the maturing of the e-Discovery marketplace, it can be easy — too easy — to think that it's all just a matter of using the right tool. But as with most business processes, and particularly with e-Discovery, it's a matter of policy and process as well.

E-Discovery Becoming Big Business

With events occurring this year such as the first Gartner e-Discovery Magic Quadrant and Symantec's acquisition of Clearwell Systems, it's obvious that the e-Discovery tools business has hit the big time. No longer does it seem solely the purview of wizened gnomes in basements meticulously poring through scanned documents like the Gringotts Wizarding Bank in the Harry Potter movies, but now something that could be done swiftly and automatically by machines.

No less an authority than John Markoff of the New York Times wrote earlier this year about how "armies" of attorneys were being replaced by software, which was not only faster but more accurate:

The computers seem to be good at their new jobs. Mr. Herr, the former chemical company lawyer, used e-Discovery software to reanalyze work his company’s lawyers did in the 1980s and ’90s. His human colleagues had been only 60% accurate, he found."

Tools Not a Panacea

However, it's important to remember that tools can't do everything. Indeed, tools are most typically used to implement processes and policies that are already in place — and a tool can't create a process or policy if there isn't one there. Moreover, different tools are appropriate at different parts of the process.

This is especially important because, as awareness of e-Discovery and its use in trials grows, the number of sanctions against companies for failing to perform e-Discovery correctly is increasing, not decreasing.

Moreover, an LDM Global study of errors in e-Discovery indicate that the most significant errors tend to be errors of process and people, not tools:

Failure to Effectively Communicate across Teams: 50% of the respondents identified this error as one that frequently occurs
An Inadequate Data Retention Policy: 47% of the respondents identified this error as one that frequently occurs
Not Collecting all Pertinent Data: 41% of the respondents identified this error as one that frequently occurs
Failure to Perform Critical Quality Control (i.e., sampling): 40% of the respondents identified this error as one that frequently occurs
Badly Thought Out, or Badly Implemented, Policy: 40% of the respondents identified this error as one that frequently occurs

In contrast, the study notes, only 14% of respondents identified Spoliation of evidence, or the inability to preserve relevant emails — one of the easier things to automate — as an error that frequently occurs.

The Most Important E-Discovery Process

There are a number of descriptions of the e-Discovery process lifecycle, but the most important part is this: Some steps are required to be followed before litigation, while others are followed afterwards. In other words, you can't wait until you get the subpoena to begin to implement an e-Discovery policy; it needs to be started right now.