Pro-Tips for Taking Control of E-Discovery

Corporate legal departments are on a quest to lower costs and gain control. In fact, one study claims 57% of in-house counsel spend $1 million-plus on e-discovery annually. Additionally, 79% of in-house counsel say they’re less reliant on outside resources, redirecting the work in-house. After years of looking at legal operations such as billing, matter management and renegotiating contracts with law firms, cost cutting’s low-hanging fruit has been harvested. Now, new approaches are required if corporations are to improve their efficiency and effectiveness, while stemming the spiraling costs of e-discovery.

It won’t be easy, given that these corporations are operating in an environment where digital data in variable formats is forecasted to grow by 5X a year, reaching up to 44 zettabytes by 2020. Every bit is potentially discoverable, presenting legal departments with an enormous data management challenge. Today, the pressure is on legal, just as any other business unit, to show value and protect the company’s interests and its opportunities while improving efficiency and containing cost.

Corporate Law Departments Slow to Adopt Innovation

Insourcing e-discovery has long been a goal of companies. But technology adoption has been slow. Technologies such as predictive coding have been extolled as “the breakthrough way” to wrangle masses of data. Yet, according to the eighth annual law department operations survey, 59.6% of respondents said they were disinclined to bring predictive coding in-house. Why the resistance? Explains Tom Barnett, special counsel of e-discovery and data science at Paul Hastings, “Predictive coding ... is a complex technology that requires a large capital and resource investment. Employing someone who has the expertise to use predictive coding efficiently only makes sense for companies with sufficient volume of litigation to keep that person busy.”

Adopting impactful change in lower risk categories can be an efficient and cost-effective alternative to adopting complex technologies to achieve the same objectives. For corporate legal departments, tools that are accessible from both a cost and usability perspective have great appeal. To cite a recent Gartner critical capabilities report: “Digital data growth pushes more data through each stage of the e-discovery process. In some cases, it breaks the threshold of technology capacity. To be able to scale, especially during the collection and processing stages, is increasingly important.” Innovative technology options, (e.g., true-SaaS software) offer flexibility, visibility, and power over their work, enabling them to control the discovery process and address data growth challenges. Cost effectiveness of technology and the simplicity of use are key to successfully insourcing.

In addition to technology adoption, new thinking about e-discovery is required. An intelligent discovery approach can amplify insourcing’s power. This simplifies the steps of discovery, allowing legal teams to reduce litigation costs through best practices in each step, with relatively little risk.

Take the Path of “Intelligent Discovery”

We all know that the task of e-discovery is made exponentially more complex and costly as a result of the sheer number of software, communication, and storage technologies as well as new IoT devices that perpetually record and store electronic data. “Intelligent discovery” is a modern approach to manage these challenges necessitated from the recognition that traditional e-discovery approaches are simply becoming unsustainably expensive and outmoded.

Intelligent discovery relies on three critical ingredients:

1. Defensibly preserving in place;

2. Targeted collections that focus on collecting to produce, and;

3. Leveraging super-computing to dramatically reduce time and cost with hyper-efficient data processing so that counsel can instantly access the data for fast insights.

Rarely is a party sanctioned for good faith, diligent efforts that have failed. Your team will be more successful in defining the scope of discovery, and in establishing a defense against sanctions, by demonstrating that the policies, procedures, tools, personnel and lines of communication in operation that promote sound preservation are in place and are followed. Investing in sound preservation practices are the first step for intelligent discovery.

Among vital steps:

• Electronic information should be preserved in place;
• Data should only be collected if data volatility or higher risk of spoliation requires it;
• The process must be repeatable and consistent;
• Communications should be targeted to custodians, clear and timely;
• Document the preservation steps taken, send periodic reminders and follow up on non-responders;
• Invest in training and standard policies to create a “culture of compliance.”

By applying such a process consistently, the costs and risks are mitigated and the predictability of outcomes improve.