New Tools for the Old School: Affordable Early Case Assessment and Information Governance
Modern litigators know that Big Data has created a big chasm in every organization's ability to monitor, manage and mine critical data. Within most enterprises, the explosion of unstructured data is powering new levels of productivity, but distributing critical communications across different applications, on different devices, stored in disparate databases, has vastly complicated document discovery for auditing, investigation and litigation.
Bridging this chasm requires the proactive application of new technologies that can automate aspects of data management like content typing on ingestion and the automated application of retention policies based on that content type (or custodian, or keyword...). There is significant potential in this type of ‘predictive retention'. The advent of these technologies promises comprehensive document production and simplified data management, and not just for litigators. While there are certainly "e-discovery platforms" that promise to deliver on each of the stages of the Electronic Discovery Reference Model (EDRM), these systems are expensive and complex to manage.
The realities of modern discovery for most businesses are that a solution which delivers only on the "first half" of the EDRM (identification, preservation, collection, processing) can go a long way toward satisfying document demand at a fraction of the cost. If your organization is involved in 20 or more lawsuits or interrogatories annually, then perhaps you can't live without one of these exhaustive e-discovery platforms. If your organization is involved in 5 to 15 of these cases each year, a solution that delivers a collection of relevant documents for review and analysis would slash your expenses on legal process outsourcing (LPOs) and/or the engagement of outside counsel while boosting your response velocity.
Know Where You Stand.
The potential savings are significant, and not just because such a system is less costly to acquire and maintain. As organizations process document discovery requests, the related investigations better inform the parties, leading to more productive pre-trial conferences and negotiations. Internal case strategy quickly takes shape when you know if you're negotiating from a position of strength or relative weakness. The "meet & confer" component of pre-trial negotiation is far more productive (for both parties) when there is a clear understanding of what was said, by whom, and what it means for all involved.
Dependable, automated policy-driven retention shouldn't cost seven figures; high-quality, cost-effective options exist today. The challenge with end-to-end e-discovery platforms that are designed to deliver on all of the aspects of the EDRM is that these solutions create exorbitant and unpredictable expenses. Many enterprises simply don't have the budget for a multi-million dollar platform but need to protect themselves from costly litigation anyway, and predictable expenses are always a preferred option-you may not know what you will lose in litigation in the coming years, but you should know what it is going to cost you to respond to any and all actions.
Executives (and investors) are increasingly demanding predictable costs for the administration of this corporate function. I talk to corporate counsel all the time, and when I ask about their biggest challenges, it isn't long before they mention the fact that they simply can't budget for discovery costs. Next year, they might spend one million, they might spend seven. Having a handle on the future expenditure for preliminary document production requires having a data management system that doesn't charge per search, per user, or layer multiple fees on top of the data processing. The ideal solution is a comprehensive method to survey ESI (electronically stored information) and provide confidence that this view into the data is accurate and complete. One view of the truth, if you will.
Data Deluge
An information governance platform should enable an organization to better secure and manage their unstructured data by applying identity-aware Big Data concepts across e-mail, file and collaboration repositories. Applying as much of that awareness as possible during the collection, or data ingestion, phase also enables automated policy-driven retention, which can greatly accelerate the discovery process and ensure a comprehensive result set when searching for critical data.
Information governance solutions which stop short of trying to deliver a comprehensive e-discovery platform can serve to quickly reduce the result set which then needs to be reviewed by legal, and therein lie significant savings. Imagine an easy-to-use interface that gives authorized administrators control and ‘analytic visibility' into large and diverse volumes of unstructured data. These more nimble solutions rely on metadata and full-text indexes across dispersed servers and services, just like the large multi-million dollar e-discovery platforms. For organizations that can't afford to buy into these enterprise platforms and at the same time can't afford to ignore the potential liability of failing to respond, in whole or in time, to discovery requests, a new breed of scalable solutions exist to cater to early case assessment.
Parsing data into accurate result sets requires a data management platform that, in all likelihood, spans multiple locations, servers, formats and file types-a unified enterprise information management solution that eliminates the need for separate information governance, archiving and early case assessment products and outside service providers. Maintaining multiple applications means greater complexity, greater expense and greater potential for data loss.
Savvy enterprises which seek to take the initial phases of the e-discovery process in-house, either for the first time or to supplement or replace existing tools, would be well served to investigate these emerging solutions. Enterprises focused on information governance which already have archiving or content management systems may want to use them as the foundation of an internal e-discovery strategy, but because of exponential and continual data growth, cannot adequately address the need. It is clear that the desire to bring e-discovery costs under control by bringing data under control (through retention management) is a strategy that professionals within both legal and IT departments are aggressively pursuing to optimize cost and control risk.
Illuminating Dark Data
"Finding the edges" is the first step in any discovery process. Where do documents and data live within the organization? Network topology maps go some of the way toward identifying the hardware on which data may reside, and then ESI inventory maps go a step farther in identifying likely data repositories as well as related information, like the native file formats, whether data has recently been deleted or purged, and the points of contact for each of these data sources. Collecting this information ‘manually' or relying on IT personnel to deliver a comprehensive list of where an organization keeps its data is not a reliable solution. A unified information governance platform helps to illuminate the ‘dark data' in every corner of your operation, and without a full understanding of where information lives, you can't be sure you're collecting all of the data relevant to your investigation. With a comprehensive data map, you can navigate discovery from request to success!
Increase your chances of a positive outcome—not just in the courtroom (although that's certainly important), but within the boardroom. Management quite rightly places an emphasis on risk reduction, liability mitigation and protecting against ‘loss of reputation'. The speed with which an organization can dismiss or address legal action is arguably the best way to target these vulnerabilities.