Nothing brings IT and legal departments together more than electronic discovery. E-discovery can be a complex and often-lengthy process encompassing identification, preservation, collection, preparation, review and production of electronically stored information in response to a legal or government inquiry. An ad hoc process five years ago, e-discovery today has become a critical, routine and rapidly growing business process within the enterprise.
Two significant long-term trends are driving the dramatic increase in e-discovery. First is the rapid growth in ESI, which is increasing around 30 percent per year.
Second is the continuous increase in litigation and government inquiries. According to a recent Enterprise Strategy Group survey, approximately 53 percent of respondents expect the number of lawsuits and regulatory inquiries to increase by at least 20 percent in 2010, with 13 percent expecting an increase of 50 percent or more. The survey also found that, in response to these expectations, 73 percent of enterprises plan to implement e-discovery this year.
At its core, e-discovery typically starts out as an IT issue - more specifically, a storage issue that grows in complexity parallel with the growth of data volumes within an organization. By the final stages, e-discovery becomes primarily a legal issue. Neither department can conduct its e-discovery role in a vacuum, because the way in which IT fundamentally enables the process – and the ensuing cooperation between the two departments throughout – can critically affect the legal team’s end result. Because IT is the starting point, however, it is in a unique position where the core decisions, strategies and systems that IT oversees hold the potential to serve up significant rewards not just to the IT and legal departments’ workflow and budgets, but to the enterprise as a whole.
The following list, detailing the top five landmines to avoid in e-discovery from an IT and storage perspective, offers key considerations to help IT storage personnel prepare for their emerging and vital role in launching and enabling this business process. The information draws upon input from industry experts as well as IT and corporate legal departments at Fortune 2000 enterprises that have had success with e-discovery.
1. Underestimating the cost of storage
The cost of storage has declined precipitously in the last decade, with per-gigabyte costs dropping from close to $20 in 2000 to less than $0.10 in 2010. This has resulted in a “save everything” approach within many corporations. However, the real cost of keeping all this data often lies beneath the surface. During e-discovery, the cost to process and review one GB of stored data is multitudes more. Processing costs exceed $1,000 per GB and attorney review costs (at an average fee of $250 per hour) can easily exceed $4,000 per GB, bringing the total cost of processing and review to $5,000 per GB. In other words, the e-discovery cost per GB is 500,000 times the cost of storage. With this in mind, corporations and IT departments must develop and enforce data retention policies to responsibly reduce data and avoid a downstream data deluge that can result in crippling e-discovery costs.
2. Assuming that email archiving is the silver bullet
Email archiving is certainly an important first step in good data hygiene, but implementing an archive does not constitute a complete solution for two important reasons. First, most email archiving products do not offer the advanced analysis and review capabilities the legal team requires in order to respond to e-discovery requests. Second, email archives do not store all of the enterprise data from the multitude of origins that are increasingly becoming relevant sources of discoverable information. Rather, email archives are just one piece in the rapidly expanding spectrum of data sources such as end-user desktops and laptops, centralized file servers, collaboration tools (SharePoint, wikis, blogs), structured databases (ERP, CRM systems) and social media accounts (Twitter, Facebook, LinkedIn). With this in mind, the enterprise must make sure to consider solutions that cover all critical data sources involved in e-discovery, not just email archives.
3. Relying solely on technology
Technology is a crucial element in e-discovery, but it is not the only answer. As with any business process within the enterprise, effective and defensible e-discovery requires the right balance of people, processes and technology. In addition to the right technological solution, enterprises must document detailed workflows that capture best practices in a way that is both easily available to end users as templates within the solution and able to withstand the litmus test of defensibility. Similarly, enterprises must also staff their teams with experienced people who can manage the entire process on an ongoing basis, measure results and continuously optimize the process. These people must possess the skills to speak both IT and legal languages and understand the needs and perspectives of these two departments. An investment in even the best e-discovery technology can thus be hampered if resources are not also devoted to the corresponding people and processes – just as these components cannot be expected to effectively accomplish their e-discovery roles if they are not empowered with a market-leading technological solution.
4. Trying to solve a nonlinear problem with a linear approach
E-discovery is an iterative process that involves back and forth between the preservation, collection and review phases. For example, the scope of a collection, which is typically handled by IT, could vary greatly depending on the feedback from legal, which analyzes and reviews data. As the legal team moves through the collected data, they may find that a broader date range or expanded custodian list are necessary to the case. Any such downstream change would require IT to perform additional collections. Rather than enabling these iterations, traditional approaches are often rigid and require multiple tools to complete the e-discovery process, which not only inhibits the unavoidable back-and-forth process but also increases the likelihood of errors resulting from manual handoffs. Be sure to select solutions that support an iterative e-discovery workflow across IT and legal departments and cover multiple phases of the e-discovery process.
5. Attempting to index everything
It is understandably tempting for IT to turn to a solution that can index all data sources – such as laptops, desktops, file servers, SharePoint servers, databases, email archives, content management systems – and enable legal to perform early case analysis across the entire enterprise in an instant. The reality, however, is that while such an approach may work for small and medium-sized companies with a finite scope of data, the level of complexity in scale and operations in any large enterprise makes this simply not achievable. Be realistic; take stock of the capabilities of your existing systems and leverage these strengths to craft a proactive and minimally disruptive early case assessment strategy tailored to the needs of your organization.
The current economic environment has led to a greater awareness of storage and data management strategies and their impact on e-discovery costs. In response to the significant pressure to reduce costs in these areas, IT departments are reaching across the aisle and collaborating with their legal counterparts to streamline e-discovery.
As this takes place, IT departments have the responsibility – and also the unique opportunity – to focus on the entire business process, not just the parts that would traditionally involve IT. Done strategically and with an eye on the big picture, IT can play an integral role in delivering cost savings to their organizations.
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