Information Management
A Case for Proactive Discovery

We’ve heard it all before—information is being generated at an unprecedented pace with no signs of slowing. One study reported that 90% of an organization’s information is created digitally. The same study found that the average user sends and receives 17MB of data every day. As information continues to compound, organizations must be prepared to quickly find and produce this information in response to litigation matters and internal or external requests for information. An archiving tool can help address these issues by enabling an organization to automate its retention policies, implement legal holds from a centralized location, and search and review information during the early case assessment process.

While the threat of discovery or a request to produce information has always been a factor for most organizations, it is only in the past decade or so that responding to these requests has come to require so much time, effort and cost. This is largely due to the fact that information generation has overtaken its management. Traditionally, conducting discovery has been a reactive process: organization receives a request for information and organization then scrambles to identify what information must be preserved, collected, reviewed and produced. While this may have worked when potentially relevant information could be found in individual filing cabinets and notebooks, given the explosion of data on our systems, this approach no longer makes legal or business sense.

With the increased proliferation of data, changes to the legal landscape are also driving the need for a more proactive approach to discovery. In addition to the new process and timing requirements brought about by the amendments to the Federal Rules of Civil Procedure (FRCP), there are other factors affecting the landscape almost as significantly. Without question, the current economic climate is affecting how organizations approach litigation. Many organizations may be hesitant to bring suit or engage in a lengthy and protracted defense unless the issue being litigated is strategically important to the business or the case is a guaranteed winner.

Adding to this pressure, in the wake of various cost-cutting measures, legal departments are being asked to trim their expenses and re-evaluate how they work with and use outside counsel and other third-party vendors and service providers, and discovery expenses are no exception. For many organizations, these costs are in the millions of dollars every year. To address these issues, organizations need to realistically determine WHERE costs can be easily cut and WHAT procedures can reasonably be taken in-house without increasing risk. The most robust document review tool in the world will not create much benefit if the organization does not have enough internal staff to actually review documents. Organizations need to realistically evaluate their processes to see where reasonable changes can be made that will save money and not create more work or unnecessary risk.

Get Control of Your Information
What is an organization to do when faced with these challenges? While many organizations understand the risk associated with unmanaged information from both a legal and an IT perspective, they may be unsure of how best to respond. By and large, the organizations that are way out ahead on these issues are those that have been affected by large litigations and have had to engage in a fire drill to locate and produce information. For most organizations, it is not a question of if, but when they will be hit with litigation or some kind of information request that requires them to go searching through their environment.

The first step in a proactive discovery process is creating an information management foundation. This foundation should include retention policies reasonably related to the needs of the business and an automated expiry process. Before an organization can begin to determine what retention policies should apply, it needs to understand the information that exists on its systems and how its employees are using and accessing this information. Policies should enhance and support workplace functionality, not make it more difficult. For example, if a sales division routinely accesses contracts during the course of a year, it would not make business sense to implement a six-month retention policy on these documents, as doing so would likely lead employees to save this information off the network.

One of the best ways to develop reasonable retention policies is to involve different perspectives by establishing a team to provide input and feedback. Opinions are likely to vary, but reaching consensus within the group will help ensure that the policies that emerge are reasonably related to the way individuals actually work and use information.

One issue to keep in mind during this process is that the less information you keep, the less you will ultimately have to search, review and produce. There are significant storage and maintenance benefits to keeping only what is necessary, but from the legal perspective, less information means less legal risk and lower cost downstream. Once the process of developing retention policies has begun, an archiving solution can significantly support the effort and help streamline the discovery process. Even before retention policies are well-established, an archive will provide visibility into an organization’s information and can help further drive and refine retention decisions. With the right email and file archiving tool, retention policies can then be automated so that manual search, review and deletion of information is no longer required.

Equally important as being able to automate retention policies, organizations must also be able to implement a legal hold once litigation is reasonably anticipated. Several cases in the past year have driven this point home as courts have awarded sanctions where organizations have failed to implement legal holds in a timely manner. By integrating a tool that provides one-click legal hold capability at the source (i.e. no need to copy data in order to preserve it), organizations can ensure that information relevant to a legal matter is immediately preserved until such time as the hold can be lifted. In addition, an automated and objective hold system will help eliminate the risk of human error and the potential for spoliation claims.

Early Case Assessment
There has been much discussion recently around the idea of early-case assessment and the benefits it can provide during the e-discovery process. At a high-level, early case assessment (ECA) is the process of reviewing facts and information relevant to a case to help determine how best to approach the matter. The ECA process is essentially where you determine the who, what, where of the matter and evaluate your best strategy for moving forward. Often, the information derived from the ECA process will enable you to determine the level of risk involved in the matter, which can help an organization make strategic decisions about how to proceed. For example, is the matter something that requires outside counsel, or is it something that could be handled in-house? The ECA process also provides an opportunity to perform a high-level review of the data before incurring outside vendor or service provider costs to process and further analyze the data. By employing an archive, organizations can essentially take the search and review tasks that were formerly done by outside service providers in-house, reducing costs significantly.

In addition, the ECA process will inform the legal hold process and can help protect a company from the risk of spoliation claims and potential sanctions. By searching the archive, counsel can quickly determine the key custodians and issues in a matter and can broaden or tailor its legal hold notices as appropriate. The ECA process is equally applicable to both large and small matters, and it is a necessary step in internal investigations as well. An effective ECA process requires a combination of professional experience and judgment, and ready access to the underlying information in the case. This is where an archiving tool can have a significant impact on an organization’s ability to be proactive. Using an archive, an organization can search for information as soon as it learns of a matter and quickly retrieve relevant data for review and analysis. Because archived information has already been indexed and collected, organizations can quickly assess an issue without the time and expense associated with a manual or third-party collection process. This enables the organization to make informed decisions and determine case strategy with confidence very early on.