"E-discovery costs are out of control."
"E-discovery costs threaten to skew the justice system."
"E-discovery is the perfect storm."
This refrain has even reached Congress, with Rule 502 seeking to help reduce discovery costs. Why has this chorus reached such a crescendo?
In the mid-1960s, the term "email" was simply a way to transfer electronic information from one user’s directory to another on the same computer. In the 1970s, email as we now know it evolved through the development of standards and the creation of folders and software designed to help organize and send mail. From this point forward, the ability to store, manage and discover email in practice has largely failed to evolve. While the technology exists, the excuses are many. The cost of review has firmly entrenched itself as the agent of change in the pages of magazines, in industry groups and even in the halls of Congress.
Early on, the explanation was that unstructured electronically stored information (ESI) was not a record and did not need to be retained or managed outside of a few regulated industries. Records managers recoiled from the management of electronic information and IT was forced to take a larger role in an effort to keep the systems up. Even the thought leaders at The Electronic Discovery Reference Model (EDRM) seemed to indicate that the first step in the discovery process could simply be called "records management" as indicated by the first node of their original workflow model. Today the first node of the EDRM workflow has expanded in scope and is now known as "information management." The recognition of email and other electronically stored information as part of the discovery process has been memorialized in the Federal Rules of Civil Procedure (FRCP), case law and through numerous public displays of poor information management.
Gasoline and Gigabytes
When gas was $1.18, many drivers failed to consider the future cost of owning an SUV if gas reached $5 per gallon. Today’s fuel price fluctuations require buyers to carefully evaluate their driving habits and budget before making a purchase. Like SUVs in the era of cheap fuel, organizations continue to acquire more storage at a rate never before seen. It costs only 18 cents per month for a gigabyte of storage at Amazon.com, and IDC recently reported a 43.7% increase in shipped disk capacity year over year. Gartner reports that while IT budgets are only growing from 0% to 2% annually, the annual spend on storage is increasing by 7%. Given the relatively inexpensive costs for storage itself, organizations tend to let massive volumes of ESI collect without proper information management policies in place. Eighteen cents of storage can contain 100,099 pages of email. The typical laptop ships with around 80 GB of storage. Without a platform for information management these factors could bring even the most prolific review teams to their knees. Thus it is vital that every organization manage the retention and expiry of electronic data. Information should only be kept as long as necessary to support the business, regulatory requirements or legal hold. Retention of information longer than necessary is a major driver of review costs. Here are five ways that you can use archiving to improve the way you handle discovery requests and reduce the volume of electronic data that needs to be reviewed.
1. Automate the collection of electronically stored information. While most organizations have policies for the retention and expiration of electronically stored information such as email, instant messages, Microsoft SharePoint libraries, Microsoft PST files, Lotus Domino NSF files and file-share data, few are able to actually enforce retention or expiry. As a result, electronic discovery involves searching through any location where data may be stored, making e-discovery time-consuming and costly. Courts and the FRCP favor organizations that can show the routine and good faith operation of an electronic information management system when it comes to e-discovery. With the current volume of electronic information stored by most organizations, a functioning process for the retention, collection and eventual expiration of information is critical for both routine information management and e-discovery.
2. Automate the legal hold process. Careful attention is being paid to the cost of the document review process. But those costs must be weighed against the risk of losing a case or being forced to settle it because of evidence spoliation—the failure to adequately preserve electronic evidence. Archiving can reduce the likelihood of spoliation by centralizing unstructured information and automating legal holds. When an organization is under a duty to preserve data, the archiving software can quickly suspend deletion and maintain electronically stored information in the archive. Because data is pre-collected according to policy, this approach reduces the need to collect, create and manage copies of data from multiple custodians on a per-matter basis.
3. Make an early case assessment before investing in further e-discovery. Organizations that are able to assess each case or investigation early in its lifecycle are better equipped to make informed decisions about which cases to fight and which to settle. E-discovery costs and settlement thresholds can be reduced by giving inside counsel access to the archive with search and review capabilities. Because archived information has already been collected and indexed, organizations can conduct an early case assessment without the expense and disruption of manual data collection and third-party processing. Pre-collected, pre-indexed information is literally at the fingertips of inside counsel, paralegals or even outside counsel if needed.
4. Use the archive to cull data relevant to the case. Once litigation has started, the archive can be used as the central repository for relevant data to be analyzed and stored. Internal and external parties can begin the culling process by searching for custodians, date ranges, retention categories, file types, Boolean keywords and more to reduce the volume of electronically stored information handled by third-party service providers, law firms and review tools. Data can then be organized into cases, assigned to reviewers, exported and even produced with Bates numbering. Organizations are using archiving technology to perform the complete review process with internal resources for some types of investigations. In other investigations, archiving serves as the platform for the initial cull, reducing the corporate body of data down into a smaller result set suitable for third-party review and analysis.