Five Steps to Regaining E-Discovery Control in the Era of Big Data

The statistics surrounding the explosion of electronically stored information (ESI) are difficult for most people to comprehend. According to analyst firm IDC, the digital universe is expected to double every two years between now and 2020. That translates in a growth from 130 exabytes to 40,000 exabytes, or 5,200 gigabytes for every man, woman and child over the next eight years. For comparison, one gigabyte is roughly 130,000 pages of text.

A significant portion of this challenge can be attributed to the growth of Big Data, which comes in varied forms, such as email, video and social media. The legal knowledge workers teams must be able to quickly understand:

1.     Who owns the ESI?
2.     How much ESI is involved?
3.     Where is ESI stored?
4.     Is the ESI subject to data privacy laws?
5.     Has the ESI been properly preserved?
6.     Can the ESI be accessed and collected?
7.     Which ESI is actually relevant?

Historically, e-discovery requests have implicated only a handful of key data sources, such as desktops, laptops, file shares and email servers. This is changing as Big Data infiltrates corporate work places. Identifying all the places potentially relevant ESI might reside when Big Data is involved brings into play an entirely new set of hurdles.

Following are five strategies for regaining e-discovery control in the era of Big Data:

1.     Create a Data Map to Identify ESI

Data mapping involves the identification and indexing of ESI as it resides across the enterprise. Developing data map that can grow and change with the enterprise requires capturing details about how potentially relevant ESI is used, stored, preserved and accessed for a specific matter or, more commonly, across the entire litigation portfolio. By building a data map, both IT and inside counsel will be in a much better position to negotiate favorable scopes of discovery and have a more realistic understanding of how burdensome it will be to comply with discovery requests. Start by documenting what you know, ask lots of questions, and, leverage technology to automate the building and maintenance of the data map.

2.     Automate the Legal Hold Process

A surprising number of enterprises still rely on email or homegrown systems for managing the legal hold process. A recent survey conducted by industry analyst firm eDJ Group found that almost half the respondents were not using any kind of tool to manage the legal hold process. Moreover, a third of respondents weren't even tracking the process at all. Besides saving substantial time and eliminating tedious manual work, advanced legal hold software comes equipped with a number of useful capabilities. For example, rather than rely on the individual to express concerns on their own, a good software system will require the employee to acknowledge the hold, confirm that they understood it, and even facilitate communication with the legal team if clarification is needed.

3.     Define the Process and Workflows

Effective e-discovery management is greatly dependent on consistent, repeatable processes and workflows. Workflows specifically define the interplay among people, process and technology as e-discovery projects move from start to finish. This is extremely important in a process that involves a variety of stakeholders (legal, IT, records management, etc.), a bevy of minute tasks and multiple departments. The end result is a proactive, well-defined process with clearly defined objectives, timelines and assignments that serves as a framework for establishing goals and setting expectations.

4.     Leverage Predictive Technologies to Reduce Costs

Because of the sheer amount of potentially relevant ESI and Big Data now involved in a standard e-discovery request, it has become impossible for humans to manually review each document for relevancy. Couple this fact with mounting research underscoring the inherent fallibility of human relevancy judgments and its becoming increasingly clear that predictive technologies, those that utilize machine learning, are becoming an indispensable element of a defensible e-discovery process. We are already seeing some experts speak to the value of applying predictive technologies pre-collection. Even judges are pushing for greater adoption in an attempt to help enterprises in response to proportionality arguments and cost containment.

5.     Utilize Platform Technology

The e-discovery technology market has traditionally been comprised of point solutions designed to tackle one stage of the larger process. Given the growing complexities of e-discovery, moving large amounts of ESI between these disparate technologies greatly increases the risk of failure. In recent years, e-discovery platforms have emerged in response corporate enterprises who want to minimize ESI security risks and e-discovery costs. A true software platform provides a common technological foundation to enable different e-discovery applications to work as a unit. These platforms can also integrate with information governance tools, such as data management, HR and archiving applications, for a more streamlined response to e-discovery requests.

Conclusion

The vast majority of e-discovery-related judicial sanctions occur as a result of poor coordination among e-discovery team members and incomplete hand-offs from one application program to another. In the era of Big Data, the risks of sanctions correspond to the growing volume and nature of ESI and the speed at which it arrives in an enterprise. Enterprises can no longer risk a reactive approach to e-discovery. Taking a proactive approach through automation, workflows and the application of advanced technology holds the key for addressing Big Data challenges for all knowledge workers.