David McGrath continues his series of articles looking at the drivers for insourcing ediscovery and the overlap with information management. How should the whole process be approached?

So how to you get started? There is a lot of talk about the need for IT and legal to work closely together. In this case, a partnership between IT and legal departments is a necessary first step. Gartner reports that often the selection of e-discovery software is a joint decision, and sometimes a joint purchase, of these areas.

As there is a clear crossover with information management, it is important to involve information and records managers. This should be done irrespective of whether they have actual ediscovery experience. It is very likely that there will be spin-off benefits for information management from the initiative.

Ideally of course, you should have specific ediscovery experience on your team. As such a project may be driven by a previous ediscovery, you may have that experience. If you do not you should consider contracting it. There are a number of organisations, including major business consulting firms, with significant ediscovery experience who can provide quality consulting services.

The first job of this group is to build a business case. Litigation costs may be more substantial than you think. The true costs of litigation may be spread around your organisation with liabilities paid by a particular business unit or from a legal reserve, legal paying the external costs of litigation and information technology contributing their time and resources to the effort.

To give you an idea of the true cost of litigation, Gartner reports that in the United States, a return on investment can be generated in just 3-6 months, or after one large case, using either moderately priced ($100,000 - $500,000) or even expensive (over $500,000) e-discovery software.

As Gartner notes, the savings come from, “defensibly culling the amount of data that is passed on to further steps in the e-discovery process, by allowing in-house attorneys to "go back to the well" and refine their searches, either coming up with more data (to avoid sanctions) or refining existing data sets to the relevant documents to pass on for further consideration”.

Information & Systems Audit

Part of the project team’s work should be the auditing of your IT systems particularly its data stores. Document these data stores and the systems they are associated with.

You need to pay close attention to legacy data such as backup tapes which over time, accumulates more and more data which is onerous to discover but may not be able to be completely ruled out as a potential source of discovery.

Assess your ediscovery risk in relation to those stores of information. How much redundant data is there? Is all the retained information required for a valid business purpose or legal obligation? Look at your organisation’s document retention policies and determine whether data can be justifiably retired.

Assess the nature of that information. Is it a business record i.e. is it evidence of what was done in the course of business activities? Simple examples would include emails, written notes of business interactions with clients or third parties, financial documents, board minutes etc. whether written on paper or even recorded in a contact management system.

Examine how the data and systems are used. Review the organisational controls in place but more importantly examine your employees actual information management practices. This needs to be “stress tested” with a few different ediscovery scenarios.

It is a common mistake to think that an information management system used to support everyday business will perform as well years later when the aims and objectives for finding and retrieving data have changed.

Look closely at your email systems and ensure they are well managed. Email is today’s primary business communication tool of choice and usually forms part of the ediscovery. It is also a good source of “smoking guns’. Email archiving systems increasingly include preservation, review and analysis functions.

Finally, don’t forget the hard copy! Even though 90% of the records created today are stored electronically, professionals working in electronic discovery will tell you that most electronic discoveries still contain significant volumes of hard copy information. In an e-discovery you may need to include the hard copy in your early case assessment tool.

From these steps, even if you don’t purchase ediscovery software, you should have plenty of ammunition to overhaul the procedures and policies relating to responding to litigation, information management and governance.

E-Discovery Software Industry

E-discovery is a maturing market with entrants from a variety of categories including storage and archiving, search and information access, content and records management, workflow and end user applications designed for lawyers, security professionals and law enforcement agencies.
Gartner has identified three major categories of e-discovery software.

The first are the information governance vendors, who include existing enterprise content management, records management and archiving vendors, who have added preservation, processing and early case assessment functionality. Players in this area include Stored IQ, Kazeon, Access Data and Guidance Software.

The second are vendors who cover identification, collection, preservation and processing. This category includes Nuix, Clearwell and Autonomy. Gartner notes that increasingly these vendors claim early case assessment capability.

The final group is concerned with processing, analysing and reviewing documents and includes document categorisation and redaction functions. They include the early legal review platforms and “litigation support” databases.

This group includes products like kCura Relativity, FTI Ringtail and Attenex, CT Summation, CaseLogistix and Autonomy’s Introspect.

David McGrath is a Sydney-based solicitor and experienced ediscovery expert.