The process of e-discovery is often associated with astronomical costs, and as expense continues to grow, so does organizational risk. The true cost of e-discovery is not only the hard dollars spent on consultants and services but also the internal staff time and utilization of organizational assets that affect the bottom line. But approached properly, these costs can be managed and organizations can even decrease expenditures while mitigating risk.
Most e-discovery events (criminal, civil and regulatory) target email and electronic documents and require massive amounts of time to find, index, manage, review and produce information. Information overload increases the complexity of the problem. Organizations do not know what information they have, where it is stored and what electronic objects should be kept or destroyed.
E-discovery is a moment in time in the lifecycle of organizational information. Documents are created, edited, may be part of a discovery, retained and stored, and disposed of. If an organization manages the complete lifecycle correctly, the cost of the discovery phase can be decreased with forethought and ongoing attention. To contain cost and risk, proactive management as a normal course of business must be combined with the reactive e-discovery process. Organizations that decouple these two necessities and deal with them separately expose themselves to substantial cost, higher risk of penalties and/or more serious repercussions such as incarceration of key employees.
An integrated five-point approach allows an organization to better manage its information, legally decrease document volumes and learn from each discovery process. The net effect is that many of the costs associated with discovery decrease and become more manageable and consistent. Therefore, organizations also are better equipped for early case assessment, allowing for more accurate and faster decisions regarding a legal or regulatory inquiry.
1. Active Management
The cost of e-discovery is proportionate to the amount of organizational data to be discovered – the more data that exists, the more documents to be indexed and searched. The volume of content that may require search, processing and sorting through can seem overwhelming, especially if the discovery request leans toward open-ended terms.
Traditionally, organizations have done a good job of managing the lifecycle of content and disposing of physical records when appropriate. More recently, some organizations have included the management of electronic records and email. What’s clear is that official records are only a fraction of all the documents, files and emails that an organization generates that should be under management.
As content builds within every organization over time, some inevitably becomes redundant, outdated or trivial and should be disposed of. An understanding of legal, regulatory and business requirements is the foundation of an organization’s ability to create policies for retention management to systematically decrease the volume of information that must be managed. This includes documents, files and emails stored and retained in archiving, document management systems and those found on the network or laptops.
Organizations have historically left management and deletion of nonrecords and working documents to individual users or addressed them through periodic departmental or IT cleanup processes. This approach leads to inconsistent policy application and deletion policies that are difficult to defend during a litigation or investigation. With proper retention management, policies are applied not only to official business records but are enforced for all managed content. A systematic rules-based approach can clean up the ROT (redundant, outdated or trivial), decrease the cost of discovery (if and when it occurs), and increase efficiencies through decreased storage requirements and improved productivity.
Just as proactive management of files better meets e-discovery requirements and decreases costs, it is important that the information is deleted as part of the normal course of business. Deletion must be based on well-defined retention policies for content, regardless of format or content location. A consistently applied policy for the deletion of content is defensible in court. In Andersen v. U.S., 544 U.S. 696, 704 (2005), the Supreme Court stated that “[i]t is, of course, not wrongful for a manager to instruct his employees to comply with a valid document retention policy under ordinary circumstances.”
2. Gather Metadata
Another important area of active retention management is an organization’s ability to gather additional information about the organization’s documents to refine and facilitate the discovery process. This includes retention and records management policies, categorization information and application-specific metadata (e.g., SharePoint profile information and on what SharePoint site the document was stored).
By proactively applying and gathering metadata, e-discovery is greatly simplified. Unfortunately, most e-discovery tools ignore this information – instead of leveraging existing metadata, they vacuum all relevant documents, records, files and emails into the discovery tool for collection, categorization and indexing. This process is time-consuming and a large part of the overall e-discovery cost; and the larger the content bucket, the larger the cost exposure will be.
3. Process Documents
Information management and governance can provide the existing information (metadata and indices) critical for your processes. For example, if an organization is storing documents in SharePoint, e-discovery can leverage not only the metadata stored within SharePoint but also the SharePoint indexes. Organizations spend substantial resources creating internal indexes within document management systems, email archiving systems and organizational search tools. These indexes are typically ignored during the e-discovery process, and instead, substantial time and resources are used in the processing phase of e-discovery to reindex this information. By proactively applying retention policies to business content, information is processed against legal, regulatory and business requirements day in and day out as part of the normal course of business.
4. Leverage E-Discovery Decisions
During any discovery process, substantial resources are applied to analyze and review the collected information. Some of this analysis is done electronically (e.g., deduplication and near deduplication), but most reviews are a time-consuming manual process performed by expensive resources. There’s no doubt that this process can generate important information about the documents that should be retained for future discovery proceedings, such as client-attorney privilege. But why pay expensive legal fees to repeatedly determine that a document is client-attorney privileged?
5. Limit Copies of Documents
Integrated systems often allow economies of scale by applying consistent processes across the organization. Such applications can reduce the cost and enhance the accuracy of the e-discovery process and decrease the potential risk of inadvertent deletion of documents required for e-discovery.
With information governance, the old approach of copying potentially relevant documents into a repository or application for discovery can be avoided. Rather, content should be managed, controlled and preserved in the system in which it is created. A fully integrated approach leverages the underlying repositories and allows items to be placed on hold as they are identified. Minimizing the need to copy content decreases the overall storage requirements (thus saving storage costs) and decreases the potential of retaining documents that would otherwise be destroyed as part of the normal course of business. These retained documents, in archived e-discovery sets that are no longer required (now an additional disparate content repository), are still discoverable, increasing the cost of discovery and the associated risks.
In most litigation, organizations are required to search historically and to hold and produce any new documents that meet the discovery requirements. The approach discussed here allows organizations to perform automated, ongoing searches to identify content and place it on hold to minimize the impact on users and legal departments while meeting obligations to preserve content.
If organizations are going to successfully manage e-discovery, they will need to transition from a purely reactive approach. Proactive management can legally decrease the volume of discoverable content and supply metadata and indexes that can be used in the discovery process. When an e-discovery event does occur, the organization can leverage the existing silos appropriately and manage, control and preserve content in place. This integrated approach allows organizations to shrink the cost of e-discovery through consistent and repeatable processes that minimize the impact to their users and the business.
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