It all starts with a “discovery program framework” -- which is just a glorified checklist. But it’s proven to be one heck of a useful checklist for those organizations who are addressing litigation readiness, compliance and e-Discovery.
The obvious motivation behind the program framework is that you can do a lot better tackling your litigation and compliance obligations if you’re proactive. There are many ways to be “proactive” in litigation and compliance; for example, by doing an early case assessment right after a trigger event to determine the best approach for that matter.
I’m primarily concerned with two other ways to be proactive in litigation discovery.
Effective discovery readiness requires that you be “proactive” with respect to the type of processes you improve, and with respect to your areas of focus:
- Be proactive by addressing not only post-trigger discovery, but also the pre-trigger lifecycle management of ESI. Merely addressing the post-trigger event discovery process itself is insufficient. You must also address how the information is proactively managed upstream --before the trigger event takes place.
- Be proactive by focusing not only on effectively performing the relevant activities during a discovery event, but also by designing and implementing the systems, processes and other conditions necessary for discovery to be effective. Discovery readiness requires that you proactively design and put in place the downstream conditions and activities that will make each future discovery event run smoothly when it happens.
Putting in place these conditions and activities to efficiently handle discovery involves much more than just technology or process. Effective discovery readiness requires competency in a number of different areas.
We have found that it’s most useful to bucket the areas of competency into six general categories. These are:
- Overall Discovery Readiness Program Strategy
- Governance and Operations
- Information Architecture
- Process Design and Implementation
- Architecture and Technology
- Communications and Training
1. Overall Program Strategy
The situation is getting a lot better with each year, but we still see many organizations attempting to address discovery with no framework, or with only a partial framework, or with a poorly designed framework.
A best practice is to develop an overall strategy for a Discovery Readiness Program that encompasses and aligns your organization’s existing visions and strategies for ECM and for records management (RM), addressing any gaps that may exist. The strategy should also establish, at a high level, general principles for the level of resources the organization will apply to the program.
The key elements of an overall program strategy are:
- Defined goals, priorities and desired outcomes
- Objective assessment of the current state
- Well-articulated (and documented) future requirements
- A definition of the target state in terms of people, process and technology, over the next three years
- A roadmap outlining the sequencing of projects required to achieve the target state
- A business case justifying the investment of time and capital (there are several ROI calculators available online, like here and here).
It’s important that the program strategy encompass the legal, RM and IT functions, as well as the business. Any program that ignores RM will be ineffective, because the resulting program will not effectively address proactive “upstream” management of ESI.
Likewise, a program that does not include the IT function will not be able to effectively execute the e-Discovery program. Finally, the business must be involved, too, in order to incorporate the program effectively throughout the organization’s functional units.
2. Governance and Operations
This component of the Discovery Readiness Program addresses the governance and operational structures for implementing the program. The key elements of the governance and operations component are:
- Governance structure
- Operational roles and responsibilities
Organizations should consider two aspects of roles and responsibilities as they relate to discovery: proactive responsibilities surrounding records and information management policies and practices (which we call program responsibilities), and reactive responsibilities that are initiated by a trigger event (which we call discovery event responsibilities).
3. Information Architecture
This component of the Discovery Readiness Program addresses how information is organized. It includes:
- Content taxonomy or information hierarchy (including metadata index values)
- Records Retention Plan
- ESI-Repository Map
We find that many organizations have the second item on the list, the Records Retention Plan, but relatively few have either a taxonomy (to organize their information), or an ESI-Repository Map (to show where their electronically stored information, or ESI, is stored). A Records Retention Plan can be strengthened by undertaking the development of a taxonomy and by developing an ESI-Repository Map.
The taxonomy facilitates ESI discovery and management; it also facilitates the development and maintenance of an effective Records Retention Plan. A well-designed taxonomy is necessary for effective e-Discovery search and discovery readiness and can significantly reduce an organization’s requirements for e-Discovery search technology products and development.
The Records Retention Plan is also part of the Information Architecture component of the Discovery Readiness Program. The plan addresses not only paper documents, but ESI -- along with the particular metadata, confidentialityvand other issues associated with ESI. This Retention Plan is based (when possible) on the organization’s taxonomy and on the ESI-Repository Map (discussed below).
The third element, the ESI-Repository Map, is critical to the development and maintenance of Information Architecture. To create this map, conduct an inventory of the instances of an organization’s ESI -- not just the types that are addressed in a taxonomy or retention plan. The inventory includes descriptions of the formats and other relevant characteristics of the ESI and notes the systems in which they reside.
As part of this inventory, evaluate the value, risk, manageability and required management capabilities for the various types of ESI and identify improvements (e.g. whether to keep that type of ESI in place and manage it with the in-place system or move it to an external system). There’s been a dramatic advance in the effectiveness of this kind of mapping in the last two years, with the greater use of assessment tools.
This repository mapping helps to effectively fulfill the pre-trial conference requirements that are now part of the Federal Rules of Civil Procedure (FRCP). But more important, the repository mapping helps you to prioritize ESI and the systems that need improvement and to develop an effective roadmap for discovery readiness.
Make sure that your ESI map is informed by technical expertise and includes an evaluation of the organization’s content systems and repositories, as well as proactive recommendations to help improve your organization’s discovery readiness.
4. Process Design and Implementation
This component of the Discovery Readiness Program addresses the overall processes used to support discovery readiness and discovery response. These include:
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- The e-Discovery process itself
- The overall information and records lifecycle management process
- The “rules” -- policies, procedures, guidelines -- for RM and e-Discovery
A great starting point for evaluating and defining your discovery process is to map it against the industry-standard Electronic Discovery Reference Model (EDRM). This model identifies the following stages for the discovery process: Identification, Collection, Preservation, Processing, Review, Analysis, Production and Presentation.
The Information and Records Lifecycle Management process defines the upstream and downstream ESI lifecycle stages in which the discovery process resides. It typically includes the following stages: Ingestion, Indexing (Declaration and Classification), Access and Distribution, Retention and Disposition. Lifecycle management is necessary for effective discovery readiness, in order to control litigation risks and costs.
Organizations then need to design the rules -- the structured, modular set of policies, procedures and guidelines that are essential for a Discovery Readiness Program to be successful. In our experience, most organizations have outdated, incomplete, incomprehensible or otherwise inadequate rules.
The policies should fulfill the organization’s defensive requirements -- yet be capable of being put into practice. The procedures must fulfill the policies if followed. The guidelines must fill in any gaps that make the policies and procedures difficult to execute. And all such rules must be easy for the organization to maintain and to modify, when necessary.
5. Architecture and Technology
This component of the Discovery Readiness Program addresses the overall technologies that are used or can be leveraged for discovery readiness, as well as the architecture for how they fit together.
We recommend that organizations develop a functional architecture for discovery readiness and, where relevant, that they integrate and coordinate that architecture with the architectures for RM, email management and for broader ECM. This helps ensure that e-Discovery and discovery readiness become entrenched in an organization’s IT strategy, enabling the discovery program to leverage the organization’s technical resources and technologies.
Developing the architecture required to effectively fulfill the Discovery Readiness Program requires not just technical expertise, but also RM and ECM expertise to provide a more comprehensive strategy for ESI.
Typically, the most appropriate capabilities for discovery and for pre-trigger ESI lifecycle management come from a mix of technologies, including not just e-Discovery specialist tools, but also infrastructure and ECM products. We see many organizations that procure an e-Discovery specialist tool without analyzing their current and desired future state, and without evaluating their existing technology portfolios. In many instances, the result is a wasted opportunity: The specialist tool wouldn't be necessary if other actions were taken (e.g. consolidating repositories and enforcing policies -- things that have to be done anyway). The limited resources could have been used instead to address those e-Discovery gaps that remain.
I say more about developing your e-Discovery roadmap here.
6. Communications and Training
This component of the Discovery Readiness Program addresses the way you educate the user community and improve compliance and adoption of the procedures and solutions that support discovery readiness. The Communications and Training component includes:
- Organizational readiness evaluation and monitoring
- Communication plan and program
- Training plan and program
Communications and training should socialize the Discovery Readiness Program and the rules, ensuring that the policies defined as part of the program continue to be effectively followed in practice. Training should differentiate between types of e-Discovery participants, including consumers, contributors and coordinators -- as well as subtypes within each of those categories.
The goal is to achieve high employee participation, along with high quality of participation. But practically speaking, it’s difficult to achieve both of these objectives from the beginning. So a best practice is to identify the high-frequency, high-risk, high-value areas within the organization, focusing communications and training on them and aiming for high participation in those areas. Then, as the program develops, participation and quality can be ramped up.
A Discovery Readiness Program is most effective when these communication and training activities are strategically integrated into the Discovery Readiness Program roadmap, and when those activities are sufficiently differentiated to address the specific information needs of the various participants in the discovery process. The result is higher participation -- and higher quality participation.
Editor's Note: This is the first, but won't be the last from new contributor Richard Medina. Till his next contribution, read more about e-Discovery in Alon Israely's E-Discovery is Risk Management
