Recent trends in e-Discovery point toward a very promising development -- companies are recognizing the pitfalls of existing models for handling e-Discovery, and they are working smarter. As the cost of e-Discovery continues to sky-rocket, a definite movement is growing among large enterprises who want to make e-Discovery more efficient, defensible and cost effective.

The Madness of e-Discovery

Over the years, companies have used a silo approach with respect to e-Discovery, where Legal, Records and Compliance all operate independently of each other. When a legal obligation arises, they try to identify the people (custodians) involved so they can “place them on legal hold.” However, identifying the proper custodian and finding the exact data needed is no easy task. When an event occurred years earlier, some custodians may have been relocated to different departments or may no longer work for the company.

Even if a particular custodian is still in the department, complexities can arise. What if, for example, that employee was on maternity leave at the time of the event and someone else was working in their place? For most companies, e-Discovery begins with guesswork about who is the appropriate custodian to be put on legal hold. Then, companies begin to start collecting and copying data, send it to an outside vendor for processing, and then on to an ECA tool (so that they can attempt to work more cost effectively). Eventually, data finds its way into a review platform so that counsel can review the documents. This entire process is time consuming, expensive and fraught with opportunities for error.

This reactive approach to e-Discovery also creates many issues for enterprise records management teams as they attempt to identify where the company’s data may reside. What law firm was involved? Who did the processing? Was another vendor selected for hosting during the ECA phase? Where was the data during the review process? Despite many corporations’ best efforts, the reality is that literally millions of dollars are spent on a clumsy process to churn out data that may not even be correct at the end of the day.

Another huge source of expense in this model is data replication. As data is replicated and moved from one location to another, expensive charges are levied every step of the way. Data is often collected, processed and hosted again and again from the same custodians for multiple matters. It is common knowledge in the industry that 30-70% of duplicates in any given matter and a staggering number of personal, non-business records are collected, processed and potentially reviewed time and time again. It’s no wonder e-Discovery is so outrageously expensive. We have to “stop the madness!”

Change on the Horizon

In the past few years, signs of improvement have emerged as some enterprises begin to establish more proactive e-Discovery processes. Many have created data maps and are trying to understand where their data resides. Others have established e-Discovery task forces to help speed the e-Discovery process, cut costs and avoid sanctions.

Indeed, these are all good first steps. Yet despite the best of intentions, such efforts won’t save a company any real money because it does nothing to solve one of the biggest underlying problems plaguing e-Discovery today -- data replication and unnecessary storage of non-business records. When enterprises continually store and duplicate the same data over and over again, e-Discovery costs soar, plain and simple.

Technology got us into this mess and it is going to take technology to get us out. Some companies have now seen the light and are determined to stop their own madness. They have learned that data management is an enterprise problem, not just an e-Discovery problem. They are identifying ways to partner Records, Legal and Compliance to implement processes and policies to take back control of their data. To drive success, some companies are taking actions such as:

  • Reducing the time period that non-business records are maintained in the environment (those “honey pick up milk emails”),
  • Reducing the number of occurrences that a document is being stored (while ensuring chain of custody)
  • Implementing records retention policies on electronic business records,
  • Adopting legal hold processes that allows for the data to be preserved in place,
  • Introducing utilities that allow for legal matters to be handled as part of the enterprise solution, preventing data from being replicated and distributed over and over again.

Technology has changed and it is time for e-Discovery efforts to catch up. Solutions today are capable of bringing all of a corporation’s data under one roof, ensuring only one copy is maintained, a single data management policy is enforced, and one view of the data is provided for e-Discovery efforts (regardless of the number of matters).

Imagine the legal team being able to search your environment to find the real custodians and the data they need within minutes. They could negotiate keyword lists based on terms actually found in their data. Then, outside counsel could be presented with a “view” of the data for review purposes without the data ever actually leaving your environment. The data stays under your control until you are ready to produce and the only set that leaves is the production set. As we all know, the productions generally range between 5-10% of the population reviewed. Most importantly, the data is maintained in the securest of environments -- your own.

Specifically, this type of consolidated data approach enables an enterprise to reap the following significant benefits:

  • Minimized costs due to data processing and hosting
  • Lower costs associated with document review
  • Reduced licensing fees
  • Reduced infrastructure costs for data storage
  • Reduced headcount needed to administer servers
  • Repetitively accurate and complete search results
  • Dramatically faster searching, with results in seconds versus sometimes weeks
  • Avoidance of sanctions caused by delayed responsiveness
  • Ability to retain a complete audit trail and 100% chain of custody

Enticed by such compelling benefits, many large enterprises today are jumping on board and looking at their data using a holistic approach. By taking control of their data, companies gain the quick reflexes necessary to respond rapidly and thoroughly to legal inquiries, reduce data stores, and ensure that company retention policies are met.

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